IV-S01^        ^/MAINIHWV 

IIVER%     ^vosANcntr^ 


IVSOl^        ^M3AINn3WV 


^fOJIlVD  ^OJITVOJO^ 


^.OF-CAUFOrt  '>      ^OF  CAilF0fy> 


y0AMiK  ^ 


^Aaviarn^ 


% 


O   4B 


^\\EUNIVFJ% 


<&1MNV-Sai^ 


?ARY^r 


<tfHIBRARY0/ 


IVDJO^ 


^KMITCMQ^ 


AMEtfNIV' 


^lOSANGElfjV 


^UIBRARYfl/         «$UI 


^AIM-JV^         ^OJITCHO^      ^KM 


aan-^ 


^OFCAllFOfl^ 


AtfEUNIVEF 


^OF-CAUFOBto       ^OFI 


V 


^AHVUaitt^        >&AH 


IVER% 


vKlOSANCnfj> 


^nmm^ 


«$UIBRAF 
%0dlTV3 


^•LIBRARY*?/ 
£?  1    it- "  '£. 


^OJIIVJJO^  <Til3DNVS0^ 


IVERS/a 


vvlOSANCEtfjv 


^OFCAUFOfcv, 


5 

^amih< 


^OFCAIIFO^ 


.AttEUNiVtRJ/A 


^ 


^Aavaan^       <tt™$ov^ 


?ARY0^         ^UIBRARYtf/v 


&I1 


illFOMj^ 


ft* 

aan# 


^OFCAllFOfy* 


>&Aavaan# 


<0UDKV-S'. 


AfcUB-ANCElQu 


%HAIMH-]tf^ 


avU&ANGHFx. 


"%3AIN(l^ 


^OFCAIIFO^      ^0F( 


y0AavaarH^      y0A» 


VER%. 


vvA05ANCn&> 


^UIBRARY 


^UIBRARW 


li  ir     ninrl 


*weunivfr% 


^•ios 


^OJITVJJO^       ^OJIIVJJO^ 
^.OFCAllFOfyv       ^OFCAllFOff^ 


^yo-\mmH&    ^AHvaani^ 


<^133NVSOV^       VmsiM-lW 


a\u-univer% 


^lOSANGFlfr.* 


<TJ13DNYS01^       "%HAINIHtf* 


^EUNIVFJR%       ^lOSANGEl^ 


<$UIBRARY0/ 


^•UBRARYQ^ 


5 

c: 

s 

^MNIYFJtf/A 


%H3AIM3\\* 
^clMCFl^. 


^tfTOSOl^        %a3AINrt-3WV 


^OFCAllFOfy^ 


^OFCAllFOff^ 


^AWH8n-# 


^AHvaeni^ 


=3 


^ 


^UIBRARYQ^ 


<$UIBRARY0,r 


^.OFCAIIFO^ 


^OFCALIFO^ 


^m-nmts^ 


<smm-m&     tymmiti* 


<<$nwmfy 


^clOSANGEl^ 


<ttTO$ar^ 


^/hhainm^ 


%. 


^ttUNIVtRS/A 


o 

^130NVS01^ 


^VlE-MIVERtov 


^lOSANCflfj^ 


^lOSANGElty* 


-< 

^SUAINIHWV* 


<$VUBRARY^ 


^UIBRARYCfc 

£  1  <r 


%0JJTCHO^ 
^OFCAIIFO^ 


^OFCAllFOli^ 


^Aavaan-^ 


^AavHan^ 


5 


^UIBRARYflr         otftlBRARYQr 

i\  ir*  si  ir  ~ 


s\\«-uNivfl»/£      ^-ujs-AMcntr^ 


'^i  i(ac 


CO 


L> 


THE 

LAW  AOT3  PKACTICE 


OF  THE 


MUNICIPAL  COURT 


OITT  OF  NEW  YORK 

WITH  THE 

Boundaries  of  Boroughs,  Districts,  and  Wards,  and  also 
the  Latest  Decisions  Affecting  this  Court 

WITH  FORMS  AND  EXHAUSTIVE  INDEX 

BY 
LANGBEIN    BROTHERS 

COUNSELORS  AT  LAW 


George  F.  Langbein    J.  C.  Julius  Langbein 


See  Supplement  at  End  of  Book. 


FIFTH     EDITION 


NEW  YORK 

BAKER,  VOORHIS  &  COMPANY 

1902 


T 


Entered  according  to  act  of  Congress,  in  the  year  1898,  by 

LANGBEIN   BROTHERS, 

intlie  Office  of  the  Librarian  of  Congress,  Washington,  D.  C. 


Copyright,  1902,  by 
GEORGE   F.  LANGBEIN  and  J.  C.  JULIUS  LANGBEIN. 


J.    B.    LYON    COMPANY 

PRINTERS     AND     BINDERS 

ALBANYj    N.   Y. 


r 


PREFACE  TO  FIFTH  EDITION. 


The  Fourth  Edition  of  our  work,  published  in  the  year 
1898,  necessarily  embraced  and  contained  the  unrepealed 
Session  Laws,  General  and  Special  Statutes,  the  District 
Court  Act  (Laws  1857,  chap.  344)  and  its  various  amend- 
ments, the  Consolidation  Act  (Laws  1882,  chap.  410)  and 
its  amendatory  acts,  the  Greater  New  York  Charter  (Laws 
1897,  chap.  378),  numerous  sections  of  the  Code  of  Civil 
Procedure  and  its  various  amendments.  From  such  an  in- 
congruous mass  of  laws,  that  edition  was  evolved,  and  it  had 
oecome  evident  to  the  justices  and  members  of  the  bar,  that 
such  a  conglomerated  mass  of  legislative  enactments  often 
caused  grave  doubts  as  to  the  jurisdiction,  procedure,  and 
practice  of  this  court,  especially  since  the  adoption  of  the 
Charter,  which  increased  its  jurisdiction,  as  to  amount,  to  the 
sum  of  five  hundred  dollars,  and  in  many  respects  made  it 
an  important  tribunal. 

In  order  to  remedy  these  defects  and  restore  "  order  out 
of  chaos,"  the  Legislature  passed  an  act  (Laws  1901,  chap. 
218),  entitled  "  An  act  to  provide  for  a  commission  to  re- 
vise, amend,  reform,  simplify,  abridge,  and  codify  the  laws, 
rules,  practice,  pleadings,  forms,  and  proceedings  of  the 
Municipal  Court  of  the  City  of  New  York,  and  the  laws,  rules, 
et  cetera,  relating  to  the  clerks,  officers,  and  attendants  thereof, 
and  the  marshals  attached  thereto." 

Under  this  act,  the  Commission  (which  consisted  of  the 

board  of  justices  of  this  court)    appointed  seven  of  their 

[iii] 


iv  Preface  to  Fifth  Edition. 

number  to  carry  out  the  provisions  of  the  act.  On  the  27th 
day  of  January,  1902,  the  Commission  made  its  report  to 
the  Legislature,  which  is  printed  in  full  in  this  work.  This 
report  (among  oth<  r  things)  states:  "  It  was  the  object  of 
the  Commissi  >n  to  report  a  practice  act,  to  preserve,  amplify, 
and  make  more  efficient  statutory  provisions  affecting  a 
court,  the  history  of  which  can  be  traced  as  far  back  as  the 
year  1759,  and  which  at  one  time  was  a  court  of  record. 
(Langbein's  District  Court  Practice,  First  Edition  Preface,. 
Laws  1813,  chap.  86,  §  10.)" 

The  First  Edition  of  our  work  thus  cited  was  published 
in  the  year  1872,  but  the  statement  and  proof  that  this  court 
was  at  one  time  a  court  of  record  is  not  to  be  found  in  the 
"  Preface  "  of  that  edition,  but  in  a  chapter  upon  "  The  Dis- 
trict Courts  in  the  City-  of  New  York ;  Their  Creation,  Or- 
ganization, and  History."  Neither  is  the  section  of  Laws 
1813,  chap.  86,  cited  as  section  10,  correctly  cited,  the  sec- 
tion being  section  107. 

A  continuation  of  the  organization  and  history  of  the 
court  from  the  year  1872  is  contained  in  the  "  Preface  "  to 
the  Second  Edition,  published  in  the  year  1880;  in  the 
"  Preface  "  to  the  Third  Edition,  published  in  the  year  1894, 
and  also  in  the  "  Preface  "  to  the  Fourth  Edition. 

After  conflicting  decisions  in  the  Appellate  Term  and 
Appellate  Divisions  (First  and  Second  Departments),  the 
Court  of  Appeals,  in  the  case  of  WoHhington  v.  London 
Guarantee  &  Accident  Co.,  164  N.  Y.  81,  decided  that 
"  this  court,  as  created  by  the  Greater  New  York  Charter 
(Laws  1897,  chap.  378,  §  1351)  is  not  a  new  court,  but  a 
continuation,  consolidation,  and  reorganization  of  the  for- 
mer district  courts  of  the  old  citv  of  New  York,  and  the 


Preface  to  Fifth  Edition.  v 

justices'  courts  in  the  first,  second,  and  third  districts  of 
the  old  city  of  Brooklyn,  under  a  new  name." 

By  the  new  enactment,  "  all  acts  and  parts  of  acts  "  affect- 
ing this  court  are  repealed,  and  the  statutory  law  governing 
the  court  is  hereafter  to  be  found  in  this  act,  which  takes 
effect  September  1,  1902,  known  as  chapter  580  of  the 
Laws  of  1902,  and  by  section  365  thereof,  "  may  be  cited 
as  the  Municipal  Court  Act  of  the  City  of  New  York." 

We  have  only  space  in  a  preface  to  give  a  few  of  the  main 
features  of  this  new  enactment. 

The  complicated  provisions  for  long  and  short  summons 
as  to  nonresident  defendants  is  omitted,  while  jurisdiction 
is  extended  to  all  actions  for  damages  for  fraud  or  deceit ; 
to  loss  of  services,  or  medical  or  other  necessary  expenses 
occasioned  by  personal  injuries ;  to  an  action  upon  a  surety 
bond  or  undertaking  given  in  any  court.  The  power  of  the 
marshal  to  execute  process  is  extended  over  the  four  coun- 
ties and  five  boroughs  of  The  City  of  New  York.  Substi- 
tuted service  and  interpleaders  are  provided  for.  The  time 
of  the  justice  to  render  judgment  is  extended  from  eight 
to  fourteen  days,  and  parties  may  submit  a  controversy 
upon  an  agreed  case  as  in  courts  of  record.  There  is  a 
graduated  scale  of  costs  and  a  remittitur  on  appeal.  The 
justice  is  given  power,  either  in  an  action  or  summary  pro- 
ceeding, to  direct  or  set  aside  a  verdict,  vacate,  amend,  or 
modify  a  judgment,  or  grant  a  new  trial  on  the  ground  of 
fraud,  or  newly-discovered  evidence,  to  grant  or  vacate  a 
stay,  and  any  person  over  the  age  of  eighteen  years  may 
serve  a  summons  without  being  deputized  by  the  justice. 

The  law  and  practice  of  "  Summary  Proceedings "  is 
not  treated  of  in  this,  as  it  has  not  been  in  former  editions. 


vi  Preface  to  Fifth  Edition. 

We  must  respectfully,  but  firmly,  differ  from  the  state- 
ment in  said  report  that  "  this  court  is  primarily  the  poor 
man's  court,  and  so  have  preserved  in  the  main  the  features 
that  gave  it  that  appellation."  Many  sections  of  this  new 
law  contradict  that  statement,  but  we  have  only  space  to 
even  briefly  mention  one,  viz.,  section  274,  "  Judgment  in 
Favor  of  Wage-Earners."  It  is  the  shortest  "  Statute  of 
Limitation  "  on  record,  especially  when  applied  to  a  "  wage- 
earner,"  and  while  we  do  not  criticise,  nor  does  space  permit 
us  to  argue,  we  doubt  its  constitutionality. 

We  will  thank  the  justices  and  members  of  the  bar  for 
information  as  to  any  errors  they  may  discover,  in  order 
that  correction  may  be  hereafter  made. 

New  York  City,  August  18,  1902. 

GEORGE  F.  LANGBEIN, 
J.  C.  JULIUS  LANGBEIN. 


CONTENTS. 


PAGE. 

Preface    iii 

Report  of  commission   xix 

Names  of  the  justices,  clerks,  court  officials  and  marshals,  with  their 
residences,    days    and    places    of    holding    court,    and    telephone 

number   xxv 

The  Greater  New  York  Charter,  relating  to  the  Municipal  Court 

of  the  city  of  New  York 1 

CHAPTER  I. 
CHARTER: 

§  1.  The  city  of  New  York;  corporations  consolidated;  territory; 

short  title  of  this  act  2 

2.  Division  into  boroughs   3 

CHAPTER  XX. 

Inferior  local  courts.     Title  2.  The  Municipal  Court  of  the  city  of 
New  York: 

Tit.  5.  Interpreters 5 

§   1350.  Courts,  etc.,  abolished 6 

1351.  Municipal  court  created   6 

1352.  Justices  7 

Subd.  2.  Election  of  successors 8 

Subd.  3.  Id. ;  when  terms  expire  in  1897   8 

Subd.  4.  Additional  justices    9 

•  1353.  Qualification,  etc.,  of  justices 13 

1354.  Oath    14 

1355.  Salary 14 

1356.  Terms     15 

1357.  Vacancies 16 

1358.  Districts    16 

1359.  Borough  of  the  Bronx , 16 

1360.  Borough  of  Manhattan 18 

1361.  Borough  of  Brooklyn 26 

tvii] 


viii  Contexts. 

PAGE. 

§  1362.  Borough  of  Queens 37 

1363.  Borough  of  Richmond 38 

1373.  Clerks   and   assistant   clerks    ..  . .  374 

1378.  Clerks  to  administer   oaths   379 

13S3.  Removal   o*-  clerks  and  assistant   clerks    379 

1424.  Marshals  of  the  cities  of  New  York  and  Brooklyn  con- 

tinued    386 

1425.  Mayor  to  appoint  marshals;  term  of  office 387 

1426.  Id.;  marshals  for  the  boroughs  of  Queens  and  Richmond.  388 

1427.  Successors  to  present  marshals  of  New  York  city 388 

MUNICIPAL    COURT   ACT: 

TITLE  I. 

JURISDICTION    AND    GENERAL    POWERS. 

§     1.  Jurisdiction 40 

2.  No  jurisdiction  in  certain  cases   81 

3.  Removal    86 

4.  Contempt   of  court ;   criminal    96 

5.  Punishment 96 

6.  In  view  of  court  .  , 96 

7.  Preceding  three  sections  limited    97 

8.  Contempts  punishable  civilly  97 

9.  Process ;  where  service  may  be  made 105 

10.  Justice  to  administer  oaths   105 

11.  Board  of  justices   107 

12.  Board  to  make  rules   108 

13.  Court ;  by  whom  held   112 

14.  Concurrence  of  majority    112 

15.  Actions  may  be  continued  before  another  justice   113 

16.  Death    or   removal   of   justice   not   to   impair    proceedings, 

et  cetera   113 

17.  Court;   where  held   114 

18.  Seals 116 

19.  Access  to  courthouses   117 

20.  Code;  rules  of  Supreme  Court  applicable;  when 117 

(There  are  no  sections  from  20  to  25.) 

TITLE  II. 

ACTIONS;    SUMMONS;    PARTIES. 

§  25.  In  what  district  brought   119 

26.  Actions ;  how  commenced  122 

27.  Summons ;   requisites   124 


Contents.  ix 

PAGE. 

§   28.  Form  of  summons    126 

29.  Summons;  corporation  counsel  may  issue,  et  cetera 127 

30.  Service ;    alias   128 

•31.  Method  of   service    129 

32.  Order  for  service  of  summons,  when  defendant  not  found.  .  133 

33.  How  such  service  must  be  made 135 

34.  Papers  to  be  filed ;  proof  of  service  135 

35.  Defendant  when  allowed  to  defend   136 

3G.  Who  may  serve  summons,  et  cetera   136 

37.  Return  day  139 

38.  Indorsement   upon  summons    142 

39.  Indorsement   upon   summons   where   execution   against   the 

person  may  issue    143 

40.  Parties ;   appearance  of   144 

41.  Guardian  ad  litem   149 

42.  Parties ;  who  may  be  joined 151 

43.  Application  of  this  article  to  defendants  jointly  liable 153 

44.  Where  employee  is  party  154 

45.  Who  may  petition  for  leave  to  prosecute  as  a  poor  person..  155 
4G.  Contents  of  petition 156 

47.  Order  and  petition  to  be  filed;  when  counsel  assigned 157 

48.  When  leave  may  be  annulled 157 

49.  When  defendant  may  defend  as  a  poor  person,  et  cetera..  157 

50.  Defendant's  order   158 

51.  Leave  may  be  annulled  as  in  cases  of  plaintiff 158 

52.  Appeal  where  plaintiff  or  defendant  poor  person   159 

53.  Costs  in  favor  of  petitioner    159 

(There  is  no  section  54.) 

TITLE  III. 

PROVISIONAL    REMEDIES;    AND    ACTIONS    TO    FORECLOSE    A    LIEN    ON    A 

CHATTEL. 

ARTICLE  I. 

ORDER   OF   ARREST. 

:§  55.  Process  to  be  served  by  marshal 160 

56.  In  what  eases  order  of  arrest  to  be  granted 161 

57.  Affidavit  and  undertaking  upon  granting 169 

58.  What   to    direct    171 


Contents. 

PAGE. 

59.  Papers    to    be    delivered    to    arrested    person;    proceedings 

thereupon    171 

60.  Proceedings  in  ease   justice  is  a   witness   172 

61.  Plaintiff  to  be  notified  of  arrest  172 

62.  Bail  or  deposil   before  return  172 

63.  Bail  may  be  examined    173 

64.  Bail  or  deposit  after  return   174 

65.  When  and  how  defendant  to  remain  in  custody 174 

66.  Duty  of  marshal  175 

67.  Undertaking   by   arrested    defendant    on   applying   for   ad- 

journment   175 

68.  Motion  to  discharge  from  arrest 176 

69.  Privilege  from  arrest 181 

70.  Sections  applicable  as  to  undertakings,  et  cetera 182 

(There  are  no  sections  71  or  72.) 

ARTICLE  II. 

ATTACHMENT. 

73.  When  may  be  granted   183 

74.  What  must  be  shown  to  procure  warrant 184 

75.  Contents  of  warrant   191 

76.  Undertaking 192 

77.  How  warrant  to  be  executed   193 

78.  Attachment,  how  levied   194 

79.  Certificate  of  defendant's  interest  to  be  furnished 196 

80.  Person  refusing  certificate  may  be  examined   196 

81.  Marshal  may  maintain  action    197 

82.  When  attachment  discharged,  et  cetera;  property  to  be  re- 

stored to  defendant  197 

83.  Service  of  summons  and  warrant  of  defendant 198 

84.  Undertaking  of  defendant   198 

85.  Claim  by  third  person;  bond  and  delivery  thereupon 199 

86.  Judgment  upon   bond    200 

87.  Action  upon  undertaking  where  warrant  is  vacated 200 

88.  Return   by   marshal   attaching    201 

89.  Application  to  vacate  or  modify  warrant  of  attachment.  .  .  202 

90.  Effect  of  vacating  warrant   206 

91.  Judgment  where  property  has  been  attached 206 

92.  Sections  applicable  as  to  undertaking,  et  cetera  207 

(There  are  no  sections  93  or  94.) 


Contents.  xi 

ARTICLE  III. 

REPLEVIN. 

PAGE. 

95.  Action  to  recover  a  chattel    209 

96.  Affidavit  and  undertaking  by  plaintiff   211 

97.  Affidavit  therefor,  before  commencement  of  action 212 

98.  Where  several  chattels  are  to  be  replevied 216 

99.  Plaintiff's  undertaking  for  replevin   216 

100.  When  agent,  et  cetera,  may  make  affidavit  for  replevin  or 

return  .„...., 217 

101.  Requisition  of  justice    218 

102.  How  executed    218 

103.  How  executed  if  property  concealed,  et  cetera 219 

104.  Marshal  to  keep  in  possession;  when  and  how  to  deliver.  .  219 

105.  Return  to  requisition    220 

106.  Defendant  when  to  except  to  sureties,  proceedings  there- 

upon     221 

107.  Defendant  may  reclaim  chattel ;   proceedings  thereupon .  .  222 

108.  Qualifications  of  sureties    223 

109.  Justification    224 

110.  Allowance  of  undertaking 225 

111.  When  and  to  whom  marshal  to  deliver  chattel   225 

112.  Penalty  for  wrong  delivery  by  marshal   226 

113.  Claim  of  title  by  third  person;   proceedings  thereupon...  226 

114.  Action  against  a  marshal  on  claim   227 

115.  Indemnity  to  marshal  against  such  action   228 

116.  Answer  of  title  in  third  person   228 

117.  Defendant  may  demand  judgment  for  return  of  chattel..  228 

118.  For  delivery  of  property;  how  money  recovered  by  same 

judgment  may  be  collected  229 

119.  Damages,  when  chattel  injured,  et  cetera,  by  defendant.  .  229 

120.  Judgment  or  verdict;   what  to  state    230 

121.  Judgment  or  verdict,  et  cetera,  for  part  of  several  chattels.  231 

122.  Damages,  how  ascertained   on  default    231 

123.  Final  judgment,  et  cetera    232 

124.  Execution,  contents  thereof   , .  233 

125.  Marshal's  power  to  take  chattel   233 

126.  Action   on  undertaking,   when  maintainable    234 

127.  Marshal's  return,  evidence  therein   234 

128.  Injury,  et  cetera,  no  defense    234 

129.  Proceeding  where  summons  not  personally  served 235 

130.  When  action  not  affected  by  failure  to  replevy 235 

131.  Judgment  of  action  with  others    236 

(There  are  no  sections  from  131  to  137.) 


xii  Contents. 

ARTICLE   IV. 

ACTION  TO  FORECLOSE  A  LIEN   ON  A  CHATTEL. 

PAGE. 

|  137.  Action ;    when   and   in  what  courts  maintainable    236 

138.  Warrant  in  action    237 

139.  Action   on     conditional   sale    agreement,   et   cetera;     how 

brought    237 

140.  Judgment ;   order  of  arrest ;  body  execution   238 

141.  Judgment,   et   cetera    239 

142.  Application  of  this  article 239 

(There  are  no  sections  143  or  144.) 

TITLE  IV. 
PLEADINGS. 
$  145.  Pleadings  on  joinder  of  issue   241 

146.  What  causes  of  action  may  be  joined  in  the  same  com- 

plaint       245 

147.  Plaintiff   to   prove   his    case, —  except    on   contract   where 

there  is  a  verified  complaint 248 

148.  Defendant  may  offer  to  allow  judgment  or  compromise.  .  250 

149.  Complaint 251 

150.  Answer;  what  to  contain 257 

151.  Counterclaim  defined    262 

152.  Rules  respecting  the  allowance  of  counterclaim 263 

153.  Judgment  when  demand  or  counterclaim  are  equal,  or  un- 

equal     264 

154.  For  affirmative  relief   265 

155.  Counterclaim  when  defendant  is  sued  in  a  representative 

capacity   265 

156.  When  plaintiff  is  an  executor  or  administrator 265 

157.  Counterclaim  where  amount  is  in  excess  of  courts'  juris- 

diction     266 

158.  When  defendant  may  demur   266 

159.  Demurrer  to  complaint  must  specify  grounds  of  objection.  268 

160.  Demurrer   to   all   or  part  of  the  complaint;   may  answer 

to    part    268 

161.  Formal  reply  or  demurrer  to  counterclaim  not  necessary.  .   269 

162.  When  plaintiff  may  demur  to  answer    269 

163.  Requirements  concerning  verified  pleadings   270 

164.  Verification;  how  and  by  whom  made   270 

165.  Exhibition  of  accounts  at  instance  of  adverse  party  may 

be    ordered    271 

166.  Amendment  of  pleadings 272 


Contents.  xiii 

PAGE. 

167.  Private  statute ;   how  pleaded   273 

168.  Judgments ;   how  pleaded    274 

169.  Conditions    precedent ;    how    pleaded    274 

170.  Pleadings  to  be  liberally  construed  274 

171.  Immaterial  variance  in  pleading  to  be  disregarded 275 

172.  Material  variances ;  how  provided  for   275 

173.  What  to  be  deemed  a  failure  of  proof 275 

174.  Partial   defenses    275 

175.  Complaint  in  actions  by  or  against  corporations 276 

176.  When  proof  of  corpoi-ate  existence  unnecessary    276 

177.  Misnomer,    when    waived    277 

178.  Pleadings  in  actions  on  bastardy  bonds   277 

179.  Answer    of    title    278 

180.  Defendant  in  answer  of  title  to  deliver  undertaking 279 

181.  New  action  to  be  brought  in  Supreme  Court   280 

182.  Old  action ;  thereupon  discontinued  280 

183.  Penalty  for  failure  to   deliver   undertaking    281 

184.  Title  appearing  from  plaintiff's  own  showing   281 

185.  Same  cause  of  action,  and  defense  in  new  action 282 

186.  Answer  of  title  interposed  as  to  only  one  or  more  of  sev- 

eral defenses ;  proceedings  thereupon 282 

187.  Interpleader  by  order  in  certain  cases   282 

(There  are  no  sections  from  187  to  193.) 

TITLE  V. 

PROCEEDINGS  BETWEEN   JOINDER   OF  ISSUE  AND   TRIAL. 

ARTICLE  I. 

ADJOURNMENTS;     SUBPOENAS;      ATTENDANCE    OF    WITNESSES. 

193.  Trial  may  be  adjourned,  when   285 

194.  Adjournment  longer  than  eight  days;   undertaking   287 

195.  Conditions  may  be  imposed. 288 

196.  Attendance  of  witnesses   288 

197.  How  subpoena  served   291 

198.  Warrant  of  attachment  against  defaulting  witness 292 

199.  How  executed:   fees  thereupon   293 

200.  Defaulting  witness  liable  for  damages,  and  penalty  of  fifty 

dollars 293 

(There  are  no  sections  from  200  to  205.) 


xiv  Contents. 

ARTICLE  II. 

COMMISSION    TO    TAKE    TESTIMONY;    DEPOSITIONS. 

PAGE. 

§  205.  Commission  to  take  testimony,  et  cetera    295 

20G.  Commission  on  consent;   deposition  upon  oral  questions..  296 

207.  When  and  how   commission  granted    296 

208.  Adjournment   where   commission   granted    297 

209.  How  executed  and  returned    298 

210.  Certificate    of   execution    300 

211.  Certificate,    a    sufficient   return 300 

212.  When  deposition  may  be  suppressed 301 

213.  Deposition,  et  cetera,  evidence 302 

214.  Power  of  commissioners    303 

215.  Receipt  of  clerk ;  return  of  commission  by   304 

216.  Deposition  to  take  testimony  conditionally 304 

217.  Affidavit  on  application:  requirements  of 305 

218.  Deposition  by  consent   306 

219.  Order   for   examination    306 

220.  Punishment  for  disobeying  order,  witness  fees    307 

221.  Service  of  order    307 

222.  Adjournment  of  examination   308 

223.  Party   confined   in  prison    308 

224.  Rules  for  examination ;   manner  of  taking  and  returning 

deposition;  refusal  of  person  examined  to  answer 309 

225.  Deposition  may  be  read  in  evidence,  when 309 

226.  Effect  of  deposition   310 

(There  are  no  sections  from  226  to  230.), 

TITLE  VI. 

TRIAL;    TRIAL    JURORS. 

§  230.  Issue  of  fact  and  law;  judgment  within  what  time  to  be 

rendered  311 

231.  Trial  by  jury;  drawing  the  jury 314 

232.  Court  may  direct  trial  by  jury,  when   316 

233.  Trial  jurors;  list  of,  to  be  furnished  clerk  of  each  district.  317 

234.  Jury  of  twelve,  when 318 

235.  How  jury  summoned;  notice   319 

236.  Talesmen   320 

237.  Ballots  of  jurors  summoned  but  not  drawn 320 

238.  Adjournments  after  return  of  jury   321 

239.  Verdict ;   requisites    321 


Contents.  xv 

PAGE. 

i  240.  Conduct  of  trial 322 

241.  Submission  of  a  controversy  upon  facts  admitted 338 

242.  Papers  to  be  filed  339 

243.  Subsequent  proceedings  regulated 339 

(There  are  no  sections  from  243  to  248.) 

TITLE  VII. 
JUDGMENT   AND   EXECUTIONS. 

ARTICLE  I. 

JUDGMENTS. 

248.  Nonsuit,  when  authorized   341 

249.  Judgment  of  dismissal  on  merits,  when   343 

250.  Judgment  when  sum  exceeds  jurisdiction 344 

251.  Judgment  where  defendant  liable  to  arrest 344 

252.  Court  may  direct  verdict,  when   346 

253.  Court   may   open   default    347 

254.  Motion  to  set  aside  verdict  or  vacate  or  amend  judgment.  352 

255.  New  trial ;  fraud  or  newly-discovered  evidence 354 

256.  Court  may  impose  conditions,  et  cetera   354 

257.  Appeal  from  order    355 

(There  are  no  sections  from  257  to  260.) 

ARTICLE  II. 

EXECUTION. 

260.  How  issued 357 

261.  Transcript,   how   to   issue;    judgment    of   Supreme   Court, 

when   docketed   358 

262.  When  satisfaction  of  judgment  presumed   360 

263.  Real  property  bound  for  ten  years  by  a  judgment  thus 

docketed    360 

264.  Judgment,   and   effect    of,   against   defendants   jointly   in- 

debted when  all  are  not  served  361 

265.  Execution ;  indorsement  thereupon  362 

266.  How   collected    362 

267.  Judgment,  how  docketed;  effect  of  docketing 363 

268.  Action  against  joint  debtors   363 

269.  Docketing  judgment  in  another  county   364 

270.  Judgment   against   marshal    365 

271.  Execution;   requisites   365 


xvi  Contents. 

PAGE. 

§  272.  Arrest 367 

273.  Renewal  of  execution   368 

274.  Judgment  in  favor  of  wage  earner   368 

275.  Arrest  and  sale  of  property  limited 370 

276.  Marshal,   whci    liable   to  execution   370 

277.  Return  of  execution  and  satisfaction  of  judgment 373 

(There  are  no  sections  from  277  to  282.) 

TITLE  VIII. 
ARTICLE  I. 

CLERKS    AND    OFFICERS. 

§  282.  Duties  of  clerk 380 

283.  To  collect  and  account  for  fees,  et  cetera 383 

284.  Docket,   what  to   contain    383 

285.  Entries,  how  to  be  made  384 

286.  Index 3Sj 

287.  To  be  delivered  by  clerk  to  his  successor 385 

288.  Successor    may     issue    execution    on    former     unsatisfied 

docket 385 

289.  Certified  copies;  prima  facie  evidence   385 

(There  are  no  sections  from  289  to  293.) 

ARTICLE  II. 

MARSHALS. 

§  293.  Marshal  not  to  appear,  et  cetera  390 

294.  Bond  to  be  executed  by 390 

295.  Prosecution  of  bond  391 

296.  In  what  court  bond  may  be  prosecuted 393 

297.  Judgments  against  marshals;   transcript  and  execution..  393 

298.  Entry  of  judgment  to  be  indorsed  on  bond,  how 394 

299.  Amount  collected  to  be  credited  on  bond   394 

300.  City  clerk  to  report  cancelled  bonds  to  mayor;  renewal  of 

bond    39.1 

301.  Appointment  deemed  waived  for  failure  to  file  bond 395 

302.  Process  to  be  served  by  marshals 395 

303.  Marshal  may  serve  process  within  city  limits 396 

304.  Certain  laws  in  relation  to  sheriffs  made  applicable   ....  397 

305.  Marshal  to  keep  entry  book  and  indorse,  et  cetera 398 

306.  Removal  and  suspension  of  marshals   398 

(There  are  no  sections  from  306  to  310.) 


Contents.  xvii 

TITLE  IX. 

APPEALS. 

PAGE. 

310.  When  appeal  may  be  taken 399 

311.  When  and  how  taken  404 

312.  Service  of  notice  upon  respondent   407 

313.  Omission  to  serve   one,  how  supplied;    amendment,  when 

allowed   408 

314.  Undertaking  to  stay  execution  upon  judgment   408 

315.  Exception  to  sureties;  justification   410 

316.  Proceedings,  how  stayed  410 

317.  Return   411 

318.  Settlement  of  case  on  appeal 416 

319.  When  justice  is  dead,  et  cetera  417 

320.  Appeal  when  adverse  party  has  died 417 

321.  Proceedings  when  party  dies  pending  appeal   418 

322.  Order  of  substitution   419 

323.  Restitution  upon   reversal    419 

324.  Setting  off  costs  and  recovery  420 

325.  Hearing  on  appeal,  dismissal  thereof;  reversal  on  stipula- 

tion      420 

326.  Judgment 421 

327.  Clerk  Appellate  Court  to  return  papers   421 

(There  are  no  sections  from  327  to  330.) 

TITLE  X. 

COSTS    AND    FEES. 

330.  When  prevailing  party  to  recover  costs 437 

331.  When  neither  party  to  recover  costs  439 

332.  Costs ;   sums  allowed    439 

333.  When  defendant  entitled  to  increased  costs   443 

334.  Costs  on  demurrer   443 

335.  Costs  on  amendment  of  pleading 444 

336.  Costs  on  adjournment   444 

337.  Costs  after  discontinuance,  upon  answer  of  title 444 

338.  Costs  where  title  to  real  property,  in  question 446 

339.  Costs  in  actions  upon  bastardy,  et  cetera,  bonds 446 

340.  Costs  in  action  by  working  woman   447 

341.  Taxation  of  costs   447 

342.  Review   of  taxation    448 

343.  Costs,  duty  of  clerk  on  taxation 449 

344.  Costs,  affidavit  respecting  disbursements  449 

ii 


xv;ii  Contents. 

PAGE. 

§  345.  Costs  upon  appeal ;  to  whom   450 

346.  Costs  upon  appeal;  amount   451 

347.  Fees  payable  to  clerks    452 

348.  Employee's  action ;  no  fees  453 

349.  Fees,  propel  ty  of  city  45:3 

350.  Fees  on  judgment,  in  county  clerk's  office   454 

351.  Jurors'  fees 454 

352.  Witnesses'   fees    454 

353.  Stenographers'  fees 455 

354.  Marshals'   fees    456 

355.  Costs  on  order  to  prosecute  marshal's  bond 457 

356.  Fees  in  summary  proceedings   458 

(There  are  no  sections  from  356  to  360.) 

TITLE  XI. 

DEFINITIONS;    EFFECT    OF   ACT;    LAWS    REPEALED. 

§  360.  Definitions   465 

361.  Saving  clause   465 

362.  Construction   466 

363.  Sections  of  the  code  not  applicable   466 

364.  Laws  repealed    467 

365.  Act  may  be  cited 467 

366.  When  to  take  effect 467 

Schedule   of  laws  repealed    467 

Table  showing  disposition  of  laws  repealed 474 

Charter  sections  preserved   480 

Appendix  of  forms   481 

Index 537 

Index  to   forms 623 


REPORT  OF  COMMISSION. 


STATE  OF  NEW  YORK. 


No.   36. 


In  Assembly,  January  27,  1902,  Report  of  the  Commis- 
sion Appointed  to  Revise  and  Codify  the  Laws 
Relating  to  Tne  Municipal  Court  of 
the  Cicy  of  lMew  York. 


To  the  Legislature : 

Under  the  provisions  of  chapter  218  of  the  Laws  of  1901, 
Justices  George  F.  Roesch,  Joseph  P.  Fallon,  and  Francis 
J.  Worcester  of  Manhattan,  J  ohn  M.  Tierney  of  The  Bronx, 
Gerard  B.  Van  Wart  of  Brooklyn,  John  J.  Kenney  of  Rich- 
mond, and  William  Rasquin,  Jr.,  of  Queens,  were  desig- 
nated, by  the  Board  of  Justices  of  the  Municipal  Court  of 
The  City  of  New  York,  a  Commission  to  revise  and  codify 
the  laws  relating  to  that  court,  its  officers,  and  marshals. 

The  Commission  organized  by  the  election  of  Justice 
George  F.  Roesch  as  chairman,  Justice  William  Rasquin, 
Jr.,  as  secretary,  and  selected  Hon.  Cornelius  F.  Collins  as 
its  clerk. 

Since  the  adoption  of  the  Greater  New  York  Charter,  the 
Municipal  Court  of  that  city  has  become  an  important  tri- 
bunal. The  consolidation  of  the  old  Justices'  and  District 
Courts  into  Municipal  Court  made  it  desirable,  and,  in- 
deed, necessary  for  the  proper  administration  of  justice  in  the 
reorganized  court  that  the  laws  applicable  to  it  should  be 
readily  ascertained.  They  were  however  only  to  be  found 
after  laborious  and  unsatisfactory  research.  They  were  con- 
tained in  unrepealed  general  and  special  statutes,  the  District 
Court  Act  of  1857  and  its  amendatory  acts,  numerous  stat- 
utes affecting  the  old  justices'  courts,  the  Consolidation  Act 
of  1882  and  its  amendatory  statutes,  The  Greater  New  York 
Charter,  Code  of  Civil  Procedure,  and  Rules  of  Court.    Such 

[xixl 


xx  Repokt  oi-   Commission. 

a  mass  of  enactments  often  caused  grave  doubt  as  to  the 
jurisdiction  aud  procedure  in  the  reconstructed  court,  and 
there  was  a  marked  lack  of  uniformity  in  the  practice  in  it. 

The  present  Commission  was  created  to  afford  a  remedy 
for  such  a  conditi  m.  The  main  purpose  of  the  Commission 
has  been  to  revise  and  codify  all  the  laws  governing  the 
Municipal  Court,  and  embody  them,  as  far  as  practicable,  in 
one  act.  The  Commission  wished  further  to  simplify  the 
practice  within  the  limited  jurisdiction  of  the  court,  and 
make  possible  resort  to  remedies  afforded  by  the  Code  of 
Civil  Procedure,  the  absence  of  which  from  this  court  has 
frequently  resulted  in  failure  of  justice. 

It  was  the  object  of  the  Commission  to  report  a  Practice 
Act  to  preserve,  amplify,  and  make  more  efficient  statutory 
provisions,  affecting  a  court  the  history  of  which  can  be 
traced  as  far  back  as  the  year  1759,  and  which  at  one  time 
was  a  court  of  record.  Langbein's  District  Court  Practice 
(1st  ed.),  preface;  Laws  1813,  chap.  86,  §  10. 

Judge  Haight  of  the  Court  of  Appeals,  in  his  opinion  in  the ' 
case  of  Worthington  v.  The  London  G.  &  A.  Co.,  164  N.  Y. 
192,  recognizes  more  fully  the  importance  of  this  court.  He 
asserts  the  right  of  the  Legislature  to  confer  any  jurisdiction 
upon  this  court  it  may,  in  its  wisdom,  determine.  He  shows 
that  the  Municipal  Court  is  a  District  Court  within  the  pro- 
visions of  article  6,  section  17  of  the  Constitution,  with  "  such 
power  as  the  Legislature  shall  provide,  and  there  is  no  limita- 
tion whatever."  He  also  shows  conclusively  that  the  Legisla- 
ture could  confer  even  greater  jurisdiction  upon  this  court 
than  that  possessed  by  the  County  Courts.  There  can  there- 
fore be  no  question  as  to  the  power  of  the  Legislature  to  pass 
the  act  herewith  presented. 

The  changes  are  merely  in  the  direction  of  the  greater 
efficiency  of  the  court  within  its  jurisdiction.  They  are, 
likewise,  adaptations  of  remedies  afforded  by  the  Code  of 
Civil  Procedure  to  this  court.  The  Commission  has  been 
conservative  in  its  work,  and  has  not  lost  sight  of  the  fact 
that  this  court  is  primarily  "  the  poor  man's  court  "  and  so 
has  preserved  in  the  main  the  features  that  gave  it  that  ap- 
pellation. On  the  other  hand,  the  increase  in  its  jurisdiction 
since  the  passage  of  the  Greater  New  York  Charter  has  led 


Report  of  Commission.  xxi 

to  a  large  increase  in  its  business  and  has  brought  to  it  an 
unusual  amount  of  litigation  which  demands  broader  rem- 
edies than  previous  statutes  afforded. 

There  has  been  some  diversity  of  opinion  as  to  the  jurisdic- 
tion in  amount  that  should  be  conferred  upon  this  court,  as  to 
the  advisability  of  repealing  the  provision  for  the  removal 
of  an  action  from  the  Municipal  into  the  City  or  Supreme 
Court,  and  as  to  the  subject  of  the  rotation  of  the  justices. 

The  Commission  calls  attention  to  the  fact  that  the  Mu- 
nicipal Court  of  the  city  of  Syracuse  and  several  city  courts 
in  the  State  have  jurisdiction  to  the  amount  of  $1,000,  and 
that  the  congested  condition  of  the  calendars  of  the  courts 
of  record  in  Greater  New  York  would  be  much  relieved  by 
conferring  such  jurisdiction  on  the  Municipal  Court. 

As  to  the  right  of  removal,  it  must  be  borne  in  mind  that 
under  the  proposed  act  a  defendant  in  certain  cases  in  this 
court  will  have  the  right  of  trial  by  a  jury  of  twelve.  Re- 
moval is  frequently  resorted  to  by  defendants  only  for  pur- 
poses of  delay.  It  is  a  relic  of  the  practice  in  courts  of  jus- 
tice of  the  peace  as  they  formerly  existed  in  New  York  City 
and  serves  no  beneficial  purpose  in  the-  interests  of  justice  to- 
day. Furthermore  under  the  decision  in  the  case  of  he- 
vine  v.  Hahner,  62  App.  Div.  195,  neither  party  in  an 
action  removed  from  these  courts  is  now  entitled  to  any  costs. 

As  to  rotation,  there  is  a  manifest  impropriety  in  requir- 
ing justices  who  are  elected  by  a  particular  constituency  to 
hold  court  in  districts  where  the  people  have  no  voice  in 
their  selection.  Moreover  it  is  an  injustice  upon  the  people 
who  select  them  because  they  are  deprived  of  their  chosen 
officials.  A  strict  compliance  with  the  existing  law  would 
require  the  justices  of  the  borough  of  Manhattan  to  be  ab- 
sent from  the  district  for  which  they  were  elected,  eleven 
out  of  twelve  months  of  the  year.  It  might  as  well  be  urged 
that  the  several  county  judges  throughout  the  State  should 
rotate  from  county  to  county.  Stronger  reasons  might  be 
advanced  why  this  should  be  done  because  there  are  but  few 
of  the  counties  up  the  State  having  as  large  a  population  as 
that  embraced  in  any  of  the  districts  of  The  City  of  Xew 
York,  especially  in  the  borough  of  Manhattan.     There  is  an 


xxii  Report  of  Commission. 

average  population  in  the  Municipal  Court  districts  of  be- 
tween  250,000  and  300,000  people.  The  suggestion  that  tho 
justice  may  be  affected  by  local  influences  is  unsound  and 
absurd.  Considering  the  very  large  number  of  people  within 
each  district  it  would  be  impossible  for  him  to  be  acquainted 
with  more  than  an  exceedingly  small  percentage  of  the  entire 
number,  and  mere  acquaintance  does  not  impair  the  efficiency 
of  a  justice. 

Under  the  present  law  a  litigant  or  a  justice  may  call  a 
common-law  jury  of  twelve.  This  is  entirely  optional  with 
the  litigant,  and  a  jury  trial  may  be  invoked  by  either  side. 
Another  serious  objection  to  taking  the  justices  away  from 
their  own  district  is  found  in  the  fact  that  the  justices  are 
required  to  certify  the  pay-rolls  each  month  from  the  court 
for  which  they  were  selected  or  appointed,  and  sign  returns 
on  appeal  in  cases  tried  by  them  in  different  courts  where 
papers  and  exhibits  are  in  the  custody  of  different  clerks. 
The  justice  appoints  the  clerks,  attendants,  and  other  officials 
of  his  own  court  only.  He  is  expected  to  have  supervision  of 
their  conduct.  The  question  may  well  be  asked  how  can  he 
have  supervision  or  certify  their  pay-rolls  each  month  if  he  is 
away  from  his  court  the  greater  part  of  a  year.  It  is  evi- 
dent that  confusion  might  necessarily  result  from  his  absence. 
Again,  rotation  results  in  a  divided  responsibility  as  to  the 
calendar  and  disposition  of  business  in  the  court,  and  de- 
stroys that  fixed  responsibility  which  enables  the  public  and 
the  profession  to  judge  of  the  efficiency  of  its  servants.  With 
reference  to  the  comparison  between  the  population  of  the 
several  districts  of  the  Municipal  Court  and  that  of  the 
County  Courts,  it  may  be  well  to  call  attention  to  the  fact 
that,  excepting  the  counties  of  New  York,  Kings,  and  Erie, 
the  average  population  of  the  counties  of  this  State  does  not 
exceed  65,000.  In  other  words,  in  most  of  the  judicial  dis- 
tricts of  the  old  city  of  New  York,  the  population  is  as  great, 
at  least,  as  that  of  four  counties  throughout  the  State. 

The  Commission  is,  however,  so  earnestly  of  opinion  that 
the  adoption  of  a  single  statute  with  reference  to  this  court 
is  an  urgent  necessity  that  individual  members  of  it  yielded 
their  views  to  accomplish  the  desired  result,  and  the  pro- 


Report  of  Commission.  xxiii. 

visions  alluded  to  are  not  changed  herein,  but  are  left  to  the 
consideration  of  the  Legislature. 

Future  legislation  should  be  in  the  shape  of  amendments 
to  this  act. 

Statutes  necessarily  repealed  by  the  terms  of  this  act,  such 
as  that  of  1857,  are  not  expressly  mentioned  in  the  schedule, 
in  order  to  preserve  the  position  recognized  in  recent  de- 
cisions of  the  Court  of  Appeals  that  the  Municipal  Court  is 
not  a  new  tribunal,  but  a  continuation  of  the  former  District 
Courts. 

It  was  deemed  best  to  leave  the  sections  affecting  sum- 
mary proceedings  in  the  Code  of  Civil  Procedure,  rather  than 
to  transfer  them  bodily  to  this  act,  though,  of  course,  jurisdic- 
tion over  them  is  given  herein. 

The  former  provisions  for  long  and  short  summonses  as 
to  nonresident  defendants  .  is  omitted  as  being  of  no  practical 
advantage.  It  only  gave  rise  to  useless  questions  of  mere 
practice. 

Sections  1350  and  1351,  1353  to  1363,  both  inclusive, 
1373,  1424  to  1427,  both  inclusive,  of  the  Greater  New  York 
Charter,  which  abolish  former  courts,  define  the  present  court, 
prescribe  the  qualifications  of  justices,  oath  of  office,  salary, 
term,  manner  of  filling  vacancies,  boundary  of  districts,  ap- 
pointments, removal  and  terms  of  clerks,  assistant  clerks* 
stenographers,  interpreters,  court  attendants,  remain  without 
change  in  the  charter  itself,  and  are  in  nowise  affected  by  any 
provision  of  this  act. 

A  table  shows  the  disposition  of  the  laws  repealed  and  is 
bracketed  so  as  not  to  form  a  part  of  the  act. 

The  changes  recommended  are  plainly  indicated  through- 
out the  proposed  act. 

All  of  which  is  respectfully  submitted. 

New  York,  January  15,  1901. 

GEO.  F.  ROESCH, 
FRANCIS  J.  WORCESTER, 
JOS.  P.  FALLON, 
JNO.  J.  KENNEY, 
WM.  RASQUIN,  Jr., 
JOHN  M.  TIERNEY. 
GERARD  B.  VAN  WART. 


THE  MUNICIPAL  COURT 

OF   THE 

CITY  OF  NEW  YORK. 


NAMES  OF  THE  JUSTICES,  CLERKS,  COURT  OFFICIALS,  AND 
MARSHALS,  WITH  THEIR  RESIDENCE,  DAYS,  PLACES  OF 
HOLDING  COURT,  AND  TELEPHONE  NUMBER. 


BOROUGH   OF  THE  BRONX. 

FIRST   JUDICIAL  DISTRICT. 

Court  held  at  Town  Hall,  Main  St.,  Westchester. 
Trial  days,  Tuesday  and  Friday. 

Justice,   WILLIAM   PENFIELD,   Wakefield. 
Clerk,  Thomas  F.  Delahanty,  76  Elliott  Ave. 
Assistant  Cleric,  William  D.  Miller,  Wakefield. 
Stenographer,  Lucius  W.  Howe,  Bronxwood  Park. 
Interpreter,  Robert  Vollbracht,  674  East  144tl>  St. 
Attendants,  Stephen  Collins,  Prospect  St.,  City  Island. 

John  H.  Coman,  Main  St.,  Westchester. 
Marshal,  George  Hartell,  Wakefield,  and  151   East   121st  St. 


SECOND  JUDICIAL  DISTRICT. 

Court  held  at  southwest  corner  of  158th  St.   and  3d  Ave. 
Trial  days,  every  day  except  Saturday,  Sunday,  and  legal  holi- 
days. 

Justice,  JOHN  M.  TIERNEY,  Southern  Boulevard,  near  Valentine  Ave. 
Clerk,  Thomas  A.  Maiier,  1266  Boston  Road. 
Assistant  Clerk,  John  Monaghan,  165th  St.  and  Sherman  Ave. 

[xxv] 


'xxvi  Names  of  Justices,  Clerks,  Etc. 

Stenographer,  William  M.  Browne,  Hunts  Point. 
Interpreter,  Robert  Vollbracht,  074  East  144th  St. 
Attendants,  Timothy  J.  Kelly,  758  East  102d  St. 
Peter  Koelble,  737  Forest  Ave. 
Frederick  Johnson,  661  East  142d  St. 
Marshals,  David  W.  Fkskine,  (589  East  135th  St. 
George  Rudolph,  1759  Sedgwick  Ave. 
James  McCauley,  2(341  Marion  Ave. 


BOROUGH   OF  MANHATTAN. 

FIRST  JUDICIAL  DISTRICT. 

Court  held  at  128  Prince  St. 

Trial  days,  Tuesday,  Wednesday,  and  Thursday. 

Justice,  DANIEL  FINN,  509  Broome  St. 
Clerk,  Frank  L.  Bacon,  582  Broome  St. 
Assistant  Clerk,  Stephen  McFarland,  191  Prince  St. 
Stenographer,  Edward  C.  Manners,  908  St.  Nicholas  Ave. 
Interpreter,  Bruno  Bocks,  107  Varick  St. 
Attendants,  John  McGrath,  20  Greenwich   St. 

Michael  Brennan,  576  Broome  St. 
Marshals,  Louis  Levy,  308  East  51st  St. 
Edward  H.  Healy,  8  Grove  St. 

Telephone,   1430  Spring. 


SECOND  JUDICIAL  DISTRICT. 

Court  held  at  172  Grand  St. 

Trial  days,  every  day  except  Sundays  and  legal  holiiays. 

Justice,  HERMAN  BOLTE,  3  New  Chambers  St. 
Clerk,  Francis  Mangin,  285  Mott  St. 
Assistant  Clerk,  James  P.  Diver,  88  Madison  St 
Stenographer,  Benjamin  F.  Spellman,  26  Oliver  St. 
Interpreter,  Hugh  Taggart,   183  Mulberry  St. 
Attendant,  James  McCullough,   73   Centre  St. 
Marshals,  William  Alt,    187  Delancey  St. 

James  A.  Loftus,  172  Grand  St. 

Charles  Cruisky,  172  Grand  St. 

Telephone,  2416  Spring. 


Names  of  Justices,  Clekks,  Etc.  xxvii 

THIRD  JUDICIAL  DISTRICT. 

Court  held  at  125  Sixth  Ave. 

Trial  days,  every  day  except  Sunday  and  legal  holidays. 

Justice,  WILLIAM  F.  MOORE,   111   West   11th  St. 
Clerk,  Daniel  Williams,  66  West  10th  St. 
Assistant  Clerk,  Thomas  E.  Gorman,  108  Bank  St. 
Stenographer,  Valencourt  S.  Lillie,  30  East  10th  St. 
Interpreter,  Joseph  Weill,  8  Van  Nest  Place. 
Attendants,  Daniel  B.  Murphy,  448  West  14th  St. 
Michael  Bergin,  143  West  10th  St. 
John  J.  Gallagher,  31  Carmine  St. 
Marshals,  James  T.  Pangburn,  79  Jane  St. 
John  F.  Neilson,  43  Barrow  St. 

Telephone,    1365    18th  St. 


FOURTH  JUDICIAL  DISTRICT. 

Court  held  at  northeast  corner  2d  Ave.  and  1st  St. 
Trial  days,  every  day  except  Sunday  and  legal  holidays. 

Justice,  GEORGE  F.   ROESCH,   109   East  10th   St. 
Clerk,  Julius  Harburger,  64  East  3d  St. 
Assistant  Clerk,  Lawrence  Mulligan,  35  7th  St. 
Stenographer,  Caleb  H.  Redfern,  257  West  44th  St. 
Interpreter,  Harold  Spielberg,  80   1st  St. 
Attendants,  Emil  Bayer,  316  Bowery. 

Daniel  B.  McCarthy,   108  East  56th  St. 
Marshals,  Jacob  Subin,  21  Forsyth  St. 
John  Woerner,  30  1st  St. 
Gabriel  L.  Lowenthal,  335  East  79th  St. 
Telephone,  5252  Spring. 


FIFTH  JUDICIAL  DISTRICT. 

Court  held  at  154  Clinton  St. 

Trial  days,  every  day  except  Sunday  and  legal  holidays. 

Justice,   BENJAMIN  HOFFMAN,   271    7th   St. 
Clerk,  Thomas  Fitzpatrick,  258  Henry  St. 
Assistant  Clerk,  James  H.  Sheils,  283  East  Broadway. 


xxviii  Names  of  Justices,  Clkk-ks,  Etc. 

Stenographer,  Louis  S.  Posner,  171  Rivington  St. 
Interpreter,  Jacob  Katz,   100  East  72d  St. 
Attendants,  James   McAlarney,   4:58  East   HGth  St. 
Charles  J.  Newman,  293  7th  St. 
Patrick  Reilly,   551   Grand  St. 
Marshals,  Samuel  I.  Abramson,  248  East  Broadway. 

Morris   Einstein,  311   East  4th  St. 

Max  Gross,  153  Clinton  St. 

Jacob  Katzenstein,  734   5th  Ave. 

Henry  Myers,  275  7th  St. 


SIXTH  JUDICIAL   DISTRICT. 

Court  held   at  407   2d  Ave. 

Trial  days,  every  day  except  Sunday  and  legal  holidays. 

Justice,  DANIEL  F.  MARTIN,  245  East  33d  St. 
Clerk,  Abram  Bernard,  956  Broadway. 
Assistant  Clerk,   James  Foley,  314  East  19th  St. 
Stenographer,  Isaac   E.  Garvey,  089  Greenwich  St. 
Interpreter,  Henry  Alsheimer,  417  East   15th  St. 
Attendants,  Lawrence  Collins,  233  East  30th  St. 

Albert  Goettman,   304  East  18th  St. 

Terrence  S.  Reilly,  244  East  37th  St. 
Marshal,  James  H.  Smith,  Court  House. 

Telephone,    1302   18th   St. 


SEVENTH  JUDICIAL   DISTRICT. 

Court  held  at  151  East  57th  St. 

Trial  days,  every  day  except  Saturday,  Sunday,  and  legal  holi- 
days. 

Justice,    HERMAN   JOSEPH,    121    East   G4th   St. 
Clerk,  Patrick  McDavitt,  430  East  57th   St. 
Assistant  Clerk,  Edward  McQuade,  1328  Lexington  Ave. 
Stenographer,  George  A.  Moulton,  Court  House. 
Interpreter,  Frederick  Fischer,  315  East  55th  St. 
Attendants,  Edward  T.  Foran,   156  East  87th  St. 

Patrick  Cunningham,  8  East   85th  St. 
William  Farley,  1357  2d  Ave. 
Marshals,  Charles  A.   Farley,   1231   Lexington  Ave. 
Michael  Goode,  407  East  57th  St. 
William   H.  Lee,   157   East  57th  St. 


Names  of  Justices,  Clerks,  Etc.  xxix 

EIGHTH  JUDICIAL   DISTRICT. 

Court  held  at  northwest  corner  23d  St.   and  8th  Ave. 
Trial  days,  every  day  except  Saturday,  Sunday,  and  legal  holi- 
days. 

Justice,   JOSEPH   H.    STINER,   Marlborough   Hotel. 
Clerk,  Henry  Merzbacii,  340  West  35th  St. 
Assistant  Clerk,  Peter  J.  Garvey,  226  West  24th  St. 
Stenographer,  Harold  Eyre,   118  West  58th  St. 
Interpreter,  Adolph   M.  Leslie,  8  West    13th   St. 
Attendants,  William  Heim,   308   West  18th   St. 

Charles  J.  Geiger,  432  East  89th  St. 
Daniel  Walsh,    329    East  88th   St. 
Marshals,  James  W.  Slater,  224  West  20th  St. 

William  H.  Godward,  449  West  23d  St. 
Henry  A.  Hoelzle,  269  8th  Ave. 
James  Boylan,  Court  House. 
William  H.  Broderick,  323  West  18th  St. 
Telephone,  1335  18th  St. 


NINTH  JUDICIAL  DISTRICT. 
Court  held  at   170  East  121st  St. 
Trial  days,   Tuesday   and  Friday. 

Justice,  JOSEPH   P.   FALLON,   1900  Lexington  Ave. 
Clerk,  William  J.  Kennedy,  71  East  125th  St. 
Assistant  Clerk,  Patrick  J.  Ryan,  172  East  94th  St. 
Stenographer,  George   Zieger,   165   East   121st  St. 
Interpreter,   Diodato  Villamena,  205   East    116th   St. 
Attendants,  Charles  L.  Lambert,  94  East  114th  St. 
John  Golden,  514  East  119th  St. 
Isaac   Silverblatt,   205   East   124th   St. 
Marshals,  Bernath  Kranz,  37  West  124th  St. 

George  W.  Hartell,  151  East  121st  St. 
Telephone,  480  Harlem. 


TENTH  JUDICIAL  DISTRICT. 
Court   held  at  312   West  54th   St. 
Trial  days,  every  day  except  Sunday  and  legal  holidays. 

Justice,  THOMAS   E.   MURRAY,   305   West  46th  St. 
Clerk,  Hugh  Grant,  346  West  56tn  St. 
Assistant  Clerk,  George  Sexton,  226  West  82d  St. 
Stenographer,  William  C.   Booth,  59  West  76th  St. 


xxx  Names  of  Justices,  Clerks,  Etc. 

Interpreter,  Martin  Senger,  732  9th  Ave. 
Attendants,  Cornelius   Foley,   342   West   47th   St. 
Thomas   CAMPBELL,   327    West  42d   St. 
John  F.  Walsh.  39  West  (iOth  St. 
Marshals,  Andrew  Wagner,  362   West   45th   St. 
William   S.   Bobchers,  719  8th  Ave. 
George  W.  Klune,  261   West  114th  St. 
Telephone,  427  Columbus. 


ELEVENTH   JUDICIAL   DISTRICT. 

Court  held  at  southwest  coiner  126th  St.  and  Columbus  Ave. 
Trial  days,  Monday   and  Thursday. 

Justice,  FRANCIS  J.  WORCESTER,  462  West  144th  St. 
Clerk,  Hem  an  B.  Wilson,  552  West  183d  St. 
Assistayit  Clerk,  Robert  Andrews,  200  West  130th  St. 
Stenographer,  Harry  W.   vVood,   189  Audubon  Ave. 
Interpreter,  Valentine  J.  Hahn,  458  W7est  131st  St. 
Attendants,  Frank  McGrath,   56   Audubon   Ave. 

Thomas   H.   McCarriok,   362   West   116th  St. 
Marshals,  James  W.  Barker,  244  West  143d  St. 
Frank  C.  Langley,  313  West  117th  St. 
Telephone,   769    Harlem. 


BOROUGH   OF   BROOKLYN. 

FIRST  JUDICIAL   DISTRICT. 

Court  held  at  northwest  corner   State  and  Court  Sts. 
Trial  days,  Monday,  Tuesday,  Thursday,  and  Friday. 

Justice,  JOHN  J.  WALSH,  289  Bridge  St. 
Clerk,  Edward  Moran,  242  Clinton  St. 
Assistant  Clerk,  James  A.  Dunne,  56  1st  Place. 
Stenographer,  Dudley  J.  Fagan,  1461   Dean  St. 
Interpreter,  Joseph   Flash,   327   Grand   St. 
Attendants,  Mathew  J.   Dowd,   359   Bainbridge  St. 
John  J.  McManus,  387  Keep  St. 
Charles  Kock,  1036  Broadway. 
Marshals,  Eugene  McCarthy,    185   State   St. 
Robert  W.  Oliver.   117  Court  St. 
John  W.  Irwin,  196  State  St. 
John   H.  Reardon,   108  Court  St. 
Michael  J.  Duffy,  82  Court  St. 


Names  of  Justices,  Clerks,  Etc.  xxxi 

SECOND  JUDICIAL  DISTRICT. 
Court  held  at  794  Broadway. 
Trial  days,  every  day  except  Sunday   and  legal  holidays. 

Justice,  GERARD  B.  VAN  WART,  340  Putnam  Ave. 
Clerk,  William  H.  Allen,  255  Vernon  Ave. 
Assistant    Clerk,  Edward  L.  Stryker,   302   Tompkins  Ave. 
Stenographer,  Charles  J.  Doyle,  75  Vanderbilt  Ave. 
Interpreter,  Jacob  F.  Becker,  121   Stagg  St. 
Attendants,  Samuel  A.  Ackerman,  510  Monroe  St. 
J.  Nelson  Magee,  21  Sterling  Place. 
John  S.  Matson,   1166  Gates  Ave. 
Marshals,  John  Wagner,  544  Hart  St. 

Charles  N.  Pracht,  780  Broadway. 
Albert  H.  Blenderman,  24  Fayette  St. 
Telephone,  582  Williamsburg. 


THIRD  JUDICIAL  DISTRICT. 

Court  held  at  6  Lee  Ave. 

Trial  days,  every  day  except  Saturday. 

Justice,  WILLIAM  J.  LYNCH,  247  Leonard  St. 
Clerk,  John  W.  Carpenter,  199  Kent  St. 
Assistant  Clerk,  Arthur  J.  Higgins,  43  Marcy  Ave. 
Stenographer,  John  W.  Richards,  13  Halsey  St. 
Interpreter,  Emil  Klebauer,  829  Manhattan  Ave. 
Attendants,  Walter  P.  Casey,  97  Russell  St. 

Edward  S.  Wilson,  20  Putnam  Ave. 
Patrick  Courtney,  1731  Fulton  St. 
Marshals,  Bernard  J.   Reilly,  Court  House. 
Richard  Wright,  Court  House. 
Frederick  C.  Meyer,  Court  House. 
Frederick  C.  Cabble,  Court  House. 
William  B.  Hobby.  Court  House. 

Telephone,  785  Williamsburg. 


FOURTH  JUDICIAL  DISTRICT. 
Court  held  at  14  Howard  Ave. 
Trial  days,  every  day  except  Saturday,  Sunday,  and  holidays. 

Justice,  THOMAS  H.   WILLIAMS,  555  Decatur   St. 
Clerk,  Herman  Gohlinghorst,  689  Bushwick  Ave. 


xxxii  Names  of  Justices,  Cleeks,  Etc. 

Assistant  Clerk,  James  P.  Sinnott,  118  Arlington  Ave. 
Stenographer,  John  F.  Reilly,  338  Hart  St. 
Interpreter,   Hyman    Rayfiul,  1701    Pitkina  Ave. 
Attendants,  Wiiliam    McKee,    17ti  Lorimer  St. 
Robert  Hill,  935  Jefferson  Ave. 
Louis  Ulm,  13  Dittmars  St. 
Marshals,  John  Wagner,  544  Hart  St. 

David  Goldberg,  402  Sackman  St. 

Telephone,  303  Bushwick. 


FIFTH  JUDICIAL  DISTRICT. 

Court  held  at  22d  St.  and  Bath  Ave.,  Bath  Beach. 
Trial  days,  Monday,  Tuesday,  and  Thursday. 

Justice,  CORNELIUS  FURGUESON,  Bath  and  22d  Aves. 
Clerk,  Jeremiah  J.  O'Leary,  275  58th  St. 
Assistant  Clerk,  Eugene  A.  Curran,  184  Clarkson  St. 
Stenographer,  Joseph  N.  B.-  Rawle,  552  lcth  St. 
Interpreter,  Alfred  Htjttingler,  Bay  25th  St.,  near  Cropsey  Ave. 
Attendants,  John  F.  Dwyer,  Kimball's  Road. 

Peter  C.  Moore,  1917  Benson  Ave. 

Cornelius  Snedeker,  Cropsey  Ave.  and  Bay  43d  St. 
Marshal,  Alonzo  F.  Glover,  116  Ashland  Place. 
Telephone,  83  Bath  Beach. 


BOROUGH   OF   QUEENS. 

FIRST  JUDICIAL  DISTRICT. 

Court  held  at  46  Jackson  Ave. 

Trial  days,  Monday,  Wednesday,,  and  Friday. 

Justice,  THOMAS  C.  KADIEN,   140   12th  St. 
Clerk,  Thomas  F.  Kennedy,  225  Grand  Ave. 
Assistant  Clerk,  Eugene  J.  Dennen,  147  9th  St. 
Stenographer,  John  J.  Sullivan,  36  Hoyt  Ave.,  Astoria. 
Attendants,  Thomas  White,  120  Broadway. 

Henry  A.  Smith,  396  Ditmar  Ave. 
Marshal,  Conrad  Diestel,  429  Jackson  Ave.,  Long  Island  City. 


Names  of  Justices,  Clerks,  Etc.  xxxiii 

SECOND  JUDICIAL  DISTRICT. 

Court  held  at  Broadway  and  Court  St.,  Elmhurst. 
Trial  days,  Monday,  Wednesday,  and  Friday. 

Justice,  WILLIAM  RASQUIN,  Jr.,  137  Barclay  St.,  Flushing. 
Clerk,  Henry  Walter,  Jr.,  Juniper  Ave.,  Middle  Village. 
Stenographer,  C.  Herbert  Burns,  Richmond  Hill. 
Attendants,  Frederick  W.  Bieling,  Lexington  Ave.,  Maspeth. 

Philip  Meters,  Jay  Ave.,  Maspeth. 
Marshals,  August  C.  Brust,  Maspeth. 

Frank  Ryan,  114  Broadway,  Flushing. 
Telephone,  4  Newtown. 


THIRD  JUDICIAL  DISTRICT. 
Court  held  at  Town  Hall,  Jamaica. 
Trial  days,  Monday,  Wednesday,  and  Friday. 

Justice,  JAMES  F.  McLAUGHLIN,  Jamaica. 
Clerk,  George  W.  Damon,  Jamaica. 
Stenographer,  John  L.  Guydir,  Jamaica. 
Attendants,  Thomas  Fox,  Jamaica. 

Joseph  Kesiler,  Jamaica. 
Marshals,  William  N.  George,  Jamaica. 

Thomas  J,  Hobby,  Far  Rockaway. 


BOROUGH  OF   RICHMOND. 

FIRST  JUDICIAL  DISTRICT. 

Court  held  at  Lafayette  Ave.  and  2d  St.,  New  Brighton,  Staten 

Island. 
Trial  days,  Tuesday  and  Thursday. 

Justice,  JOHN  J.  KENNEY,  New  Brighton. 
Clerk,  Francis  F.  Leman,  Port  Richmond. 
Assistant  Clerk,  Robert  Humphrey,  Port  Richmond. 
Stenographer,  Frank  McGoey,  New  Brighton. 
Attendants,  Edward  Finnerty,  New  Brighton. 

Frank  Langford,  New  Brighton. 
Marshal,  James  Thompson,  Port  Richmond. 

Telephone,  98  West  Brighton. 

iii 


xxxiv  Names  of  Justices,  Clekks,  Etc. 

SECOND  JUDICIAL  DISTRICT. 

Court  held  at  Village  Hall,  Stapleton,  Staten  Island. 
Trial  days,  every  day  except  Sunday  and   legal  holidays. 


Justice,  GEORGE   W.    STAKE,   Stapleton  —  Post-office. 
Clerk,  Peter  Tierxan.  Stapleton  —  Post-office. 
Assistant  Clerk,  William  J.  Browne,  Stapleton  —  Post-office. 
Stenographer,   John   G.    Farrell,   Stapleton  —  Post-office. 
Attendant,  Charles  Warnecke,  Stapleton  —  Post-office. 
Marshals,  Thomas  McCormack,  340  Bay  St.,  Southfield. 
Robert  F.  Goggin,  Court  House. 

Telephone,  81  Tompkinsville. 


»  '     .'  \ 


THE 

GREATER    NEW   YORK   CHARTER 

ENACTED  IN  1897  AND  AMENDED  BY 

Laws  1901,  Chapter  466,  relative  to  the  Municipal 
Court  of  the  City  of  New  York. 


AN  ACT  to  amend  the  Greater  New  York  Charter, 
chapter  three  hundred  and  seventy-eight  of  the  laws 
of  eighteen  hundred  and  ninety-seven,  entitled  "An  act 
to  unite  into  one  municipality  under  the  corporate 
name  of  the  City  of  New  York,  the  various  communities 
lying  in  and  about  New  York  harbor,  including  the  city 
and  county  of  New  York,  the  city  of  Brooklyn  and  the 
county  of  Kings,  the  county  of  Richmond  and  part  of 
the  county  of  Queens,  and  to  provide  for  the  govern- 
ment thereof." 

Passed  without  the  acceptance  of  the  city.  Became  a  law  April  22, 
1901,  with  the  approval  of  the  Governor.  Passed,  three-fifths  being 
present. 

The  People  of  the  State  of  New  York,  represented  in 
Senate  and  Assembly,  do  enact  as  follows: 

Section  1.  Chapter  Three  Hundred  and  Seventy- 
eight  of  the  Laws  of  Eighteen  Hundred  and  Ninety- 
seven,  Entitled  "  An  Act  to  Unite  into  One  Munici- 
pality Under  the  Corporate  Name  of  The  City  of  New 
York,  the  Various  Communities  Lying  in  and  About 
New  York  Harbor,  Including    The  City  and  County  of 

Fi] 


2         Boundaries,  Boroughs,  Powers,  Etc.     Char.,  §  1. 

New  York,  the  City  of  Brooklyn,  and  the  County  op 
Kings,  the  County  ok  Richmond  and  Part  of  the 
County  of  Queens,  and  to  Provide  for  the  Government 

Thereof,"  is  hereby  amended  so  as  to  read  as  follows: 


CHAPTEK  I. 

BOUNDARIES,    BOROUGHS,    POWERS,    RIGHTS    AIsD    OBLIGA- 
TIONS OF  THE  CITY. 

§  1.  The   City   of   New   York;    corporations   consolidated;    territories; 
short  title  of  this  act. 

2.  Division  into  boroughs. 

3.  Name:   power  and  rights  of  the  corporation;   seal. 

The  City  of  New  York;  corporations  consolidated;  territories; 
short  title  of  this  act. 

CHARTER,  §  1.  All  the  municipal  and  public 
corporations  and  parts  of  municipal  and  public  corpo- 
rations, including  cities,  villages,  towns  and  school  dis- 
tricts, but  not  including  counties,  within  the  following 
territory,  to  wit :  The  county  of  Kings,  the  county  of 
Richmond,  the  city  of  Long  Island  City,  the  towns  of 
Newtown,  Flushing  and  Jamaica,  and  that  part  of  the 
former  town  of  Hempstead,  as  it  existed  on  the  thirty- 
first  day  of  December,  eighteen  hundred  and  ninety- 
seven,  bounded  on  the  east  and  north  by  the  east  and 
north  bounds  of  the  former  village  of  Far  Rockaway, 
and  on  the  east  by  a  line  drawn  due  north  from  the 
northwest  corner  of  said  village  to  the  south  line  of 
the  town  of  Jamaica,  as  it  existed  on  the  thirty-first 
day  of  December,  eighteen  hundred  and  ninety-seven, 
are  hereby  annexed  to,  united  and  consolidated  with 
the  municipal  corporation  known  as  the  mayor,  alder- 
men and  commonalty  of  the  city  of  New  York,  to  be 
hereafter  called,  "The  City  of  New  York;"  and  the 


Char.,  §  2.  Divisiox  into  Boroughs.  3 

boundaries,  jurisdictions  and  powers  of  the  said  city 
of  New  York  herein  constituted,  are  for  all  purposes 
of  local  administration  and  government,  hereby  de- 
clared to  be  co-extensive  with  the  territory  above  de- 
scribed ;  and  the  said  city  of  New  York  is  hereby  de- 
clared to  be  the  successor  corporation  in  law  and  in  fact 
of  all  the  municipal  and  public  corporations  united  and 
consolidated  as  aforesaid,  with  all  their  lawful  rights 
and  powers,  and  subject  to  all  their  lawful  obli- 
gations, without  diminution  or  enlargement  except  as 
herein  otherwise  specially  provided ;  and  all  of  the 
duties  and  powers  of  the  several  municipal  and  public 
corporations  united  and  consolidated  as  aforesaid  into 
The  City  of  New  York  are  hereby  devolved  upon  the 
board  of  aldermen  of  the  said  city  of  New  York,  so 
far  as  the  same  are  applicable  to  said  city,  and  not 
herein  otherwise  specially  provided,  to  be  exercised  in 
accordance  with  the  provisions  of  this  act.  This  act 
may  be  cited  by  the  short  title  of  "  The  Greater  New 
York  Charter." 

Notes  to  Charter  section  i. 

For  boundaries  of  the  city  and  county  of  New  York,  see  Laws  1882, 
chap.  410,  §   1;  Laws  1885,  chap.  469,  and  Laws  1895,  chap.  934. 

Kings  and  Richmond.     Laws  1788,  chap.  64. 

Towns  of  Newtown,  Flushing,  Jamaica,  and  Hempstead.  Laws  1788, 
chap.  64.  By  Laws  1899,  chap.  379,  a  part  of  the  former  town  of 
Hempstead  was  excluded  from  the  city  and  included  in  the  present 
town  in  the  county  of  Nassau. 

Long  Island  City  was  formerly  a  part  of  the  town  of  Newtown.  Laws 
1871,  chap.  461. 

Division  into  boroughs. 

CHARTER,  §  2.  The  City  of  New  York,  as  con- 
stituted by  this  act,  is  hereby  divided  into  five  bor- 


4  Division    into   Boroughs.  Char.,  §  2. 

oughs  to  be  designated  respectively  :  Manhattan,  The 
Bronx,  Brooklyn.  Queens  and  Richmond  ;  the  bound- 
aries whereof  shall  be  as  follows : 

1.  The  borough  of  Manhattan  shall  consist  of  all 
that  portion  of  The  City  of  New  York,  as  hereby  con- 
stituted, known  as  Manhattan  Island,  Nuttin  or  Gover- 
nor's Island,  Bedloe's  Island,  Bucking  or  Ellis  Island, 
the  Oyster  Islands,  and  also  Blackwell's  Island,  Ran- 
dall's Island  and  Ward's  Island,  in  the  East  or  Har- 
lem rivers. 

2.  The  borough  of  The  Bronx  shall  consist  of  all 
that  portion  of  The  City  of  New  York  as  hereby 
constituted,  lying  northerly  or  easterly  of  the  borough 
of  Manhattan,  between  the  Hudson  river  and  the  East 
river  or  Long  Island  Sound,  including  the  several 
islands  belonging  to  the  municipal  corporation  hereto- 
fore known  as  the  mayor,  aldermen  and  commonalty 
of  the  city  of  New  York,  not  included  in  the  borough 
of  Manhattan. 

.">.  The  borough  of  Brooklyn  shall  consist  of  that 
portion  of  The  City  of  New  York,  as  hereby  consti- 
tuted, hitherto  known  as  the  city  of  Brooklyn. 

4.  The  borough  of  Queens  shall  consist  of  the  terri- 
tory known  as  Queens  county. 

5.  The  borough  of  Richmond  shall  consist  of  the 
territory  known  as  Richmond  county. 

Notes  to  Charter  section  2. 

Section  1  of  this  act  states  the  constituent  territorial  parts  of  each 
borough. 

By  section  1358  of  said  act  each  of  tl.ese  boroughs  are  divided 
into  districts,  and  section  1359,  t<>  and  including  section  13G3  state 
the  territory  and  wards  embraced  within,  and  comprising  each  district. 


Char.,  §  3.     Name  ;  Powers  and  Rights,  Etc.  5 

By  Laws  1899,  chap.  379,  certain  territory  was  excluded  from  the 
Greater  New  York  city  and  was  annexed  to  the  town  of  Hempstead  in 
the  county  of  Nassau. 

Name;  powers  and  rights  of  the  corporation;  seal. 

CHARTER,  §  3.  The  name  of  the  corporation  con- 
stituted by  this  act  shall  be  "  The  City  of  New  York," 
and  the  same  shall  by  that  name,  be  a  body  politic  and 
corporate  in  fact  and  in  law  with  power  to  contract 
and  to  be  contracted  with,  to  sue  and  be  sued,  to  have 
a  common  seal  and  to  have  perpetual  succession,  with 
all  of  the  rights,  properties,  interests,  claims,  demands, 
grants,  powers,  privileges  and  jurisdictions  held  by  the 
mayor,  aldermen  and  commonalty  of  the  city  of  New 
York,  and  held  by  each  of  the  municipal  and  public 
corporations  or  parts  thereof,  other  than  counties,  by 
this  act  united  and  consolidated  with  the  corporation 
known  as  the  mayor,  aldermen  and  commonalty  of  the 
city  of  New  York,  except  so  far  as  modified  or  repealed 
by  the  provisions  of  this  act, 

CHAPTER  XX. 

INFERIOR  LOCAL  COURTS. 

Title  2.  The  Municipal  Court  of  the  City  of  New  York. 
5.  Interpreters. 

TITLE  2. 
The  Municipal  Court  of  the  City  of  New  York. 
§   1350.  Courts,  etc.,  abolished. 

1351.  Municipal  court  created. 

1352.  Justices. 

1353.  Qualifications,  etc.,  of  justices. 

1354.  Oath. 

1355.  Salary. 

1356.  Terms. 

1357.  Vacancies. 

1358.  Districts. 

1359.  Borough  of  The  Bronx. 


G  Municipal  Court  Created.     Char.,  §§  1350,  1351. 

§   13(K).   Borough   of  Manhattan. 
L361.   Borough  of  Brooklyn. 
1362.  Borough  of  Queens. 

1303.  Borough  of  Richmond. 


Courts,  etc.,  abolisned. 

CHARTER,  §  1350.  From  and  after  midnight  of 
the  thirty-first  day  of  January,  eighteen  hundred  and 
ninety-eight,  the  justices'  courts  and  the  office  of 
justice  of  the  peace  in  the  cities  of  Brooklyn  and 
Long  Island  City  are  abolished,  and  all  jurisdiction, 
power,  authority  and  duty  theretofore  vested  in  said 
courts  and  justices  of  the  peace,  and  in  the  clerks, 
officers,  interpreters,  stenographers  and  employes  of 
said  courts  and  justices  shall  cease  and  determine, 
except  as  provided  in  the  next  section  and  section 
thirteen  hundred  and  seventy-two  of  this  act;  and 
from  and  after  the  passage  of  this  act  no  person  shall 
be  elected  to  the  office  of  district  court  justice  or  jus- 
tice of  the  peace  in  any  portion  of  the  territory 
included  within  The  City  of  New  York  as  constituted 
by  this  act. 

Note  to  Charter  section    1350. 

Section  1372,  mentioned  in  this  section,  had  reference  to  seals  and 
was  repealed  by  "  The  Municipal  Court  Act  of  The  City  of  New  York  *' 
(Laws  1902,  chap.  580,  §  364).  It  is  now  contained  in  section  18  of 
said  Municipal  Court  Act,  so  cited  by  section  365  thereof. 

Municipal   court  created. 

CHARTER,  §  1351.  On  and  after  the  first  day  of 
January,  eighteen  hundred  and  ninety  eight,  the  dis- 
trict courts  of  the  city  of  New  York  and  the  justices' 
courts  of  the  first,  second  and  third  districts  of  the 
city  of  Brooklyn  are  hereby  continued,  consolidated 


Char.,  §  1352.  Justices.  7 

and  reorganized  under  the  name  of  "  The  Municipal 
Court  of  The  City  of  New  York,"  which  said  court 
shall  be  a  local  civil  court  within  The  City  of  New 
York  as  constituted  by  this  act,  and  shall  not  be  a 
court  of  record  or  have  any  equity  jurisdiction ;  but 
shall  have  the  jurisdiction,  powers,  duties  and  organ- 
ization hereinafter  prescribed. 

Notes  to  Charter  section   135 1. 

Not  a  new  court. —  When  this  section  went  into  enect  under  "  The 
Greater  New  York  Charter"  (Laws  1897,  chap.  378),  many  conflicting 
decisions  followed  whether  this  section  did  or  did  not  create  a  new 
local  inferior  court  contrary  to  the  Constitution  of  the  State,  but  the 
question  was  finally  settled  by  the  Court  of  Appeals  in  Worthington  v. 
London  O.  &  A.  Co.,  164  N.  Y.  81,  deciding  that  "  The  Municipal  Court 
of  The  City  of  New  York  as  created  by  '  The  Greater  New  York  Charter ' 
(Laws  1897,  chap.  378,  §  1351)  is  not  a  new  court,  but  a  continuation, 
consolidation,  and  reorganization  of  the  former  District  Courts  of  the 
old  city  of  New  York,  and  the  justices'  courts  in  the  first,  second, 
and  third  districts  of  the  old  city  of  Brooklyn,  under  a  new  name." 
See  also  Menthen  v.  Eyelis,  23  Misc.  98;  Advertising  v.  Boston  Dental 
Assn.,  23  Misc.  663;  Stuber  v.  Coler,  164  N.  Y.  24. 

This  court  forms  a  part  of  the  judicial  system  of  the  State.  Const., 
art.  6,  §  18;  Hartman  v.  The  Mayor,  51  How.  Pr.  351:  Qitin  v.  The 
Mayor,  44  How.  Pr.  266,  affd.,  53  N.  Y.  627:  People  ex  rel.  Phelps  v. 
General  Sessions,  13  Hun,  397,  followed  in  19  Hun,  84,  86. 

Constitutionality. —  The  statute  establishing  the  Municipal  Court  of 
The  City  of  New  York, —  held  constitutional.  Irwin  v.  Metropolitan 
St.  Ry.,  38  App.  Div.  253,  57  N.  Y.  Supp.  21,  affg.  54  Tm.  Y.  Supp.  195; 
Worthington  v.  London,  etc.,  164  N.  Y.  81. 

The  organization  of  this  court  is  not  unconstitutional,  because  the 
justices  are  elected  in  specified  districts  in  the  city  and  exercise  their 
functions  in  various  other  districts,  as  it  is  governed  by  section  17,  arti- 
cle 6  of  the  Constitution  of  1894.     People  v.  Dooley,  69  App.  Div.  512. 

Justices. 

CHARTER,  §  1352.  The  said  court  shall  be  held 
by  justices  to  be  elected  or  appointed,  as  follows  : 

1.  The  justices  of  said  district  courts  of  The  City 
of  New  York  and  said  justices  of  the  peace  in  the  first, 


8  Election  ok  Successors,  Etc.     Char.,  §  1352. 

second  and  third  districts  of  the  city  of  Brooklyn,  in 
office  on  the  first  day  of  January,  eighteen  hundred 
and  ninety-eight,  shall  continue  for  the  remainder  of 
the  terms  for  which  they  were  elected  or  appointed, 
and  shall  be  called  justices  of  the  municipal  court  of 
The  City  of  New  York,  and  shall  have  all  the  powers 
and  jurisdiction  and  be  subject  to  all  the  duties  and 
requirements  hereinafter  prescribed  for  justices  of  said 
municipal  courts.* 

Election  of  successors. 

2.  The  successors  of  the  justices  mentioned  in  the 
first  subdivision  of  this  section  shall  be  elected  by  the 
electors  of  the  districts  for  which  said  justices  wrere 
elected  or  appointed  respectively,  as  described  and 
renumbered  in  sections  thirteen  hundred  and  fifty-nine, 
thirteen  hundred  and  sixty  and  thirteen  hundred  and 
sixty-one  of  this  act,  at  the  general  election  to  be  held 
in  the  year  at  the  end  of  which  the  terms  of  said 
justices  shall  expire. 

Id.;  when  terms  expire  in  1897. 

3.  There  shall  be  elected'  at  the  general  election  to 
be  held  on  the  first  Tuesday  succeeding  the  first 
Monday  of  November,  in  the  year  eighteen  hundred 
and  ninety-seven  as  many  justices  of  said  municipal 
court  as  there  shall  be  justices  of  the  said  district 
courts  in  the  city  of  New  York  or  justices  of  the  peace 
of  the  said  first,  second  and  third  districts,  in  the  city 
of  Brooklyn,  whose  terms  expire  at  the  end  of  year 

*  So   in  original  of  charter  of  1897,  as  amended   in   1901,  should   be 
"  court." 


Char.,  §  i;352.        Additional  Justices.  9 

eighteen  hundred  and  ninety-seven.  Such  justices 
shall  be  elected  by  the  electors  of  the  districts  for 
which  such  justices  whose  terms  expire  in  eighteen 
hundred  and  ninety-seven  were  elected  or  appointed, 
as  described  and  renumbered  in  sections  thirteen  hun- 
dred and  fifty-nine,  thirteen  hundred  and  sixty  and 
thirteen  hundred  and  sixty-one  of  this  act. 

Additional  justices. 

4.  On  or  before  the  twentieth  day  of  January, 
eighteen  hundred  and  ninety-eight,  the  mayor  of  The 
City  of  New  York  shall  appoint  seven  additional  jus- 
tices of  said  municipal  court,  two  of  whom  shall  be 
residents  of  the  fourth  and  fifth  districts  of  the  bor- 
ough of  Brooklyn,  three  of  whom  shall  be  residents 
of  the  first,  second  and  third  districts  of  the  borough 
of  Queens,  and  two  of  whom  shall  be  residents  of  the 
first  and  second  districts  of  the  borough  of  Richmond, 
respectively.  The  justices  so  appointed  shall  hold 
office  till  the  thirty-first  day  of  December,  eighteen 
hundred  and  ninety-nine,  and  their  successors  shall  be 
elected  at  the  general  election  to  be  held  in  the  year 
eighteen  hundred  and  ninety-nine,  and  shall  be  resi- 
dents of  the  same  districts  as  the  justices  appointed 
pursuant  to  this  subdivision. 

Notes  to  Charter  section  1352. 

Not  a  city  officer. —  A  civil  justice  in  The  City  of  New  York  is  not  an 
officer  or  employee  of  the  city  government,  under  section  95,  of  chapter 
335,  Laws  of  1873.  §§  95  or  97  (being  the  city  charter)  ;  Hartman  v. 
Mayor,  51  How.  Pr.  351.;  Quinn  v.  Mayor,  44  How.  Pr.  266;  affd.,  53 
N.  Y.  627  :  People  ex  rel.  Phelps  v.  General  Sessions,  13  Hun,  397,  fol- 
lowed in  19  Hun,  84,  86. 


10  Additional  Justices.        Chae.,  §  1352. 

Election  held  invalid.-- An  act  of  the  Legislature  (Laws  i860,  chap. 
217,  §  1),  appointing  a  different  time  for  the  election  of  justice  from 
that  prescribed  by  the  act  creating  the  office  (Laws  1800,  chap.  300), 
repealed  so  much  of  the  latter  act,  and  an  election  under  it  was  invalid. 
7'he  People  ex  rel.  Fouler  v.  Bull,  40  N.  Y.  57. 

Continuance  in  office. —  This  section  provides  that  the  justices,  in 
office  on  January  1,  1808,  shall  continue  for  the  remainder  of  their 
terms  and  shall  be  called  justices  of  the  Municipal  Court.  The  Rail- 
way Advertising  Co.  v.  The  Boston  Dental  Association,  23  Misc.  Rep. 
663. 

Duties,  liability,  and  powers  of  a  justice. —  Under  title  I  of  this  act 
the  jurisdiction  and  general  powers  of  the  court  are  specified  and  such 
powers  as  are  expressed  in  subdivisions  15  and  19  of  section  1  of  that 
title  which  formerly  were  perfcrmed  by  the  justice  are  now  done  by  the 
court.  See  also  note  to  §  1,  "Jurisdiction,"  and  §§  15,  19,  and  notes. 
There  are  many  incidental  duties  and  powers  of  the  justices,  and  their 
liability  in  damages  for  their  acts,  which  must  be  noted  under  this 
section  of  the  charter  as  we  know  of  no  other  more  appropriate  place, 
bee  also  §§   10  to  20. 

Altering  docket  after  time  limited  to  render  judgment  was  held  void 
in  Dauchy  v.  Brown,  41  Barb.  555. 

Arrest,  judgment  for. —  It  is  the  duty  of  the  justice  to  state  in  the 
judgment  that  the  defendant  is  subject  to  arrest  in  a  proper  case.  Car- 
pentier  v.   Willett,  31  N.  Y.  90;   s.  c,  1  Keyes,  510. 

Conversion;  boarding-house  keeper's  lien;  judgment. —  An  action  to 
enforce  a  boarding-house  keeper's  lien  upon  property  of  a  boarder  which 
he  has  clandestinely  removed  is  one  for  conversion  of  personal  property 
within  the  meaning  of  subdivision  2  of  section  2895  of  the  Code,  and  the 
justice  is  bound  to  insert  in  the  judgment  the  liability  of  the  defendant 
to  arrest  upon  execution.  Babcock  v.  Smith,  47  N.  Y.  St.  Rep.  118; 
s.  c,   19  N.  Y.  Supp.  817. 

Jury  trial,  may  direct. —  A  justice  has  power,  within  eight  days 
(now  fourteen  days)  after  the  conclusion  of  a  trial  before  him,  to 
direct  a  trial  by   jury.     Lemier  v.  Stearns,  15  Misc.  Rep.  7. 

Where  a  judgment  has  been  reversed  and  a  new  trial  ordered,  the 
justice  has  power,  on  the  second  trial,  to  direct  that  the  trial  be  had 
by  jury.  \<  ;w  York  Small  Stock  Co.  v.  The  Third  Ave.  R.  R.  Co.,  16 
Misc.  Rep.   04. 

Interest,  relationship  of  counsel. —  He  cannot  act  in  any  case  where 
he  has  an  interest  (11  Johns.  70);  or  bears  relationship  to  parties 
(17  Johns.  133  13  Johns.  191;  12  How.  Pr.  367;  19  Johns.  172)  ;  or 
had  been  counsel    (12  Abb.  Pr.  348). 

Keeping  court  open  and  trial  on  Sunday. —  See  notes  to  §  17. 

Marriages. —  The  justices  may  solemnize  marriages.  Laws  1889, 
chap.  415,  subd.  3,  and  Laws  1896,  chap.  272,  p.  217. 


Char.,  §  1352.        Additional  Justices.  11 

Penalty,  action  for  a. —  Justice  to  fix  amount  of  penalty  where  the 
law  does  not  fix  it  in  actions  by  department  of  health,  and  the  amount 
to  be  not  less  than  $80.     Charter,  §   1262. 

Relationship  of  justice  to  any  of  the  parties  renders  the  judgment 
illegal  and  void.  Chapin  v.  Churchill,  12  How.  Pr.  367 ;  Baldwin  v. 
McArthur,   17  Barb.  415. 

Term  of  office,  finishing  trial  and  return  to  writs  after. —  See  notes 
to  §  16. 

Transcript  of  proceedings,  etc. —  The  justice  may  give  a  transcript 
of  any  proceedings  had  before  him  or  any  other  paper  filed  with  him, 
or  of  the  minutes  of  any  testimony  taken  by,  or  before  him,  certified 
by  him  to  be  correct,  and  shall  be  presumptive  evidence  of  the  facts 
therein  contained.      §   15. 

Volunteering. —  It  is  not  proper  for  the  justice  to  volunteer  to  make 
amendments  not  moved  for  by  either  party.  Lloyd  v.  Fox,  1  E.  D. 
Smith,  101 ;  Enright  v.  Seymour,  8  N.  Y.  St.  Rep.  356. 

Liability  of  the  justice. —  ihe  justice  must  act  in  strict  conformity 
with  the  statutes,  and  if  he  exceeds  these  powers  his  proceedings  are 
absolutely  void,  and  he  is  liable  for  damages.  Law  v.  Rice,  8  Johns. 
409:  Clyde  d-  Rose  Plank  Road  Co.  v.  Parker,  22  Barb.  323;  Vosburgh 
v.  Tl>/c7(,  11  Johns.  174:  Kerr  v.  Blount,  28  N.  Y.  659;  Van  Low  v. 
King,  3  Cowen,  375. 

Delaying  entry  of  judgment. —  Where  the  justice,  upon  the  return 
day  ot  the  summcns,  having  the  summons,  verified  complaint,  and  due 
proof  of  service  upon  the  defendant  before  him,  and  no  answer  being 
filed  by  defendant,  refused  to  give  judgment  for  the  plaintiff  as  re- 
quired by  sections  3126,  3207  of  the  Code,  but  adjourned  the  case  for 
three  days,  and  then  entered  judgment  for  the  plaintiff,  and  the  plaintiff 
commenced  suit  against  the  justice,  setting  up  in  his  complaint  the 
above  facts,  and  alleging  that  by  reason  of  the  failure  of  the  justice 
to  enter  judgment  for  three  days,  other  creditors,  in  the  interim,  had 
levied  upon  the  property  of  the  defendants  in  the  action,  and  the  plain- 
till'  had  lost  his  debt.  Held,  that  the  justice  did  not  exceed  his  juris- 
diction in  adjourning  the  ease  for  three  days,  without  summarily 
entering  judgment.     Merwin  et  al.  v.  Rogers,  24  N.  Y.  St.  Rep.  496. 

An  action  for  damages  at  the  suit  of  an  individual  is  not  maintain- 
able against  a  justice,  because  of  his  failure  to  render  judgment  in 
an  action  tried  before  him  within  four  days  after  its  final  s\ibmission. 

As  to  whether,  where  it  appears  that  the  justice  in  fact  decided  the 
case  hut  omitted  to  enter  it  in  his  docket  within  the  four  days,  he 
would  be  liable,  quaere.     Everts  v.   Kiehl,  102  N.  Y.  296. 

Error  of  judgment. —  Although  this  court  is  a  court  of  limited  juris- 
diction, yet  where  the  justice's  act  is  an  error  of  judgment,  it  does 
not  subject  him  to  suit,  but  he  is  entitled  to  protection  afforded  to  a 
judge  of  a  court  of  record.     Merwin  v.  Rogers,  24  N.  Y.  St.  Rep.  496. 


12  Additional  Justices.        Char.,  §  i:>52. 

See  also  Austin  v.    Vrootndn,  40  X.  Y.  St.   Rep.  338;    Fischer  v.  Lang- 
bein,  103  X.  V.  84;   Eandshaw  v.  Artftttr,  9  App.  Div.  175. 

Erroneous,  irregular,  or  void  process. —  For  the  differences  between 
void  and  irregular  or  erroneous  process  and  the  liability  of  courts  and 
attorneys,  see  the  very  able  opinion  by  the  deceased  Chief  Justice 
Ruger,  in  the  case  of  Fischer  v.  Langbein,  103  X.  V.  84.  See  also  Far- 
riiii/hm   v.  Root,   10  .Misc.   Rep.   .'{47. 

Exceeding  his  power. — Fustice  is  liable,  therefore,  in  damages. 
Cowen's  Treatise,  vol.  1.  SS  17.  20,  665,  667,  680,  684,  695,  697,  698, 
804,  847;  11  Johns.  44,  177:  28  X.  V.  659;  15  Johns.  152;  10  Wend. 
420;   4  Den.   118. 

He  is  not  liable  for  errors  committed  in  the  exercise  of  his  powers  or 
authority,  where  he  has  jurisdiction  of  the  person  or  subject-matter. 
Jurisdiction  being  established,  the  court  may  proceed  to  almost  any 
length  in  the  exercise  of  its  judicial  functions,  without  incurring  any 
liability.  4  Den.  120;  11  X.  V.  tl  Kern.)  573;  19  Barb.  283:  38  Barb. 
339;  Cowen's  Treatise,  SS  17,  IS.  660,  662,  084,  697,  698,  830,  1247.  1563. 

A  well-considered  discussion  of  the  grounds  and  limits  of  exemption 
from  liability  for  judicial  acts  will  be  found  in  the  opinion  of  Justice 
Brewer  in  Cook  v.  Bangs,  24  N.  Y.  St.  Rep.  545,  where  plaintiff  sued  a 
justice  of  the  peace  who  had  committed  him  for  contempt  and,  the  com- 
mitment having  been  in  excess  of  the  justice's  jurisdiction,  claimed  that 
the  action  could  be  sustained  on  an  allegation  of  malice.  The  court 
held  that  in  the  case  of  a  justice  of  the  peace,  as  well  as  in  that  of  a 
justic?.  of  a  Superior  Court,  transcending  the  limits  of  an  actual  juris- 
diction is  not  actionable,  although  the  assumption  of  a  jurisdiction 
wholly  nonexistent  may  be.  See  also  Fischer  v.  Langbein,  103  N.  Y. 
84;   Eandshaw  v.  Arthur,  9  App.  Div.   175. 

False  return. —  A  justice  acts  ministerially,  and  is  liable  for  a  false 
return  for  any  damages  which  a  party  may  sustain.  McDonnell  v. 
Buffum,  31  How.  Pr.  1.14  ;  Houghton  v.  Swartout,  1  Den.  589;  Tomp- 
kins v.  Hands,  8  Wend.  402:  Cunningham  v.  Bucklin,  8  Cow.  178; 
Scott  v.  Rush  man,    1    Cow.   202. 

Upon  appeal  from  a  judgment,  the  appellate  court  cannot  consider 
affidavits  submitted  for  the  purpose  of  contradicting  the  justice's  return. 
Ihe  court  is  governed  by  the  return,  and  if  it  is  untrue,  the  remedy 
is  by  action  against  the  justice  for  a  false  return.  Fitzsimmons  v. 
Baxter,  3  Daly,  82. 

Misdemeanor. —  In  Newberger  v.  Campbell,  .58  How.  313,  it  was 
held  that  the  justice  is  liable  for  a  misdemeanor,  and  that  the  judgment 
is  void,  if  it  was  obtained  by  a  person  not  a  party,  or  an  attorney. 
s.  c,  9  Daly,  102;  Kaplan  v.  Herman.  37   Misc.  Rep.  502. 

Permitting  person  not  an  attorney  to  practice. —  Where  a  judge 
knowingly  permits  to  practice  in  his  court  a  person  not  regularly  ad- 
mitted to  practice,  his  judgment  rendered  in  a  cause  so  conducted  in 


Char.,  §  1353.     Qualifications,  Etc.,  of  Justices.       13 

violation  of  law    is  void  ami  will  be  reversed.     Xeicburger  v.  Campbell, 
58  How.  313:  s.  c,  9  Daly,  102;  Kaplan  v.  Berman,  37  Misc.  Rep.  502. 

Qualifications,  etc.,  of  justices. 

CHARTER,  §  1333.  No  one  shall  hereafter  be 
eligible  to  the  office  of  justice  of  the  said  municipal 
court,  after  the  first  day  of  March,  eighteen  hundred 
and  ninety-nine,  unless  he  be  a  resident  and  elector  in 
the  district  for  which  he  shall  be  elected  or  appointed 
and  has  been  an  attorney  and  counsellor-at-law  of  the 
sate  of  New  York  for  at  least  five  years  or  unless  he 
shall  have  served  as  a  justice  of  such  municipal  court. 
None  of  said  justices  shall  engage  in  any  other  busi- 
ness, profession,  or  hold  any  other  public  office  or  act 
as  referee  or  receiver,  but  each  of  such  justices  shall 
devote  his  whole  time  and  capacity,  so  far  as  the  pub- 
lic interest  demands,  to  the  duties  of  his  office ;  pro- 
vided, however,  that  this  restriction  shall  not  apply  to 
the  justices  of  said  court  mentioned  in  subdivision  one 
of  section  thirteen  hundred  and  fifty-two  of  this  act. 

Notes  to  Charter  section  1353. 

This  section  supersedes  section  1282  of  the  Consolidation  Act,  which 
■was  originally  derived  from  Laws  1857,  chap.  344,  §  5,  and  Laws  1899, 
chap.   2.34,   p.   454. 

Attorney. Tustice  may  act  as  attorney   in  his  own  case.     Libby   v. 

Rosekrans,   55   Barb.  202. 

Disqualification  cf  justice;  death  or  removal  of  justice  not  to  impair 
proceedings. —  See   §   16. 

No  fees. —  Xo  judicial  officer,  except  justices  of  the  peace,  shall  re 
ceive  to  his  ov.  n  use  any  fees  or  perquisites  of  office.  Const,  of  1894, 
art.  VI.  §  20. 

A  judge  or  other  judicial  officer  shall  not  demand  or  receive  a  fee  or 
other  compensation  for  giving  his  advice  in  a  matter  or  thing  pending 
before  him,  or  which  he  has  reason  to  believe  will  be  brought  before 
him  for  decision ;  or  for  preparing  a  paper  or  other  proceeding  relating 
to  such  a  matter  or  thing;   except  a  justice  of  the  peace,  in  a  case 


14  Oath;   Salary.     Char.,  §§  1354, 1355. 

where  a  fee  is  expressly  allowed  to  him  by  law.  Code  Civ.  Proc., 
§  51  j  McLarren  v.  Charrier,  5  I'aige,  530. 

Witness;  proceedings  in  case  justice  is  a. —  See  S  00.  The  justice 
must  be  both  a  materia]  and  necessary  witness,  which  must  be  shown 
by  tacts,  and  the  justice  is  to  judge  of  the  sufficiency  of  the  affidavit. 
Young  v.  Scott,  3  Hill,  32  ;  Murtha  v.  Walters,  2  Sandf.  517;  Board  of 
Excise,  i  tc.  v.  Doherty,  10  How.  Pr.  40. 

When  the  cause  was  called  for  trial  defendant  presented  an  affidavit 
showing  thai  the  judge  was  a  material  witness,  without  whose-  testi- 
mony the  defendant  could  not  safely  proceed  to  trial,  and  moved  that 
the  trial  might  be  had  before  another  judge.  The  motion  was  denied 
on  the  ground  that  the  judge,  as  he  then  stated,  "  could  give  no  evi- 
dence of  anything  except  what  appeared  on  his  minutes."  Held,  the 
cause  should  have  been  tried  by  another  judge;  that  the  right  of  the 
defendant  to  have  the  evidence  of  the  judge  ought  not  to  have  been 
defeated.  Brown  v.  Brown,  2  E.  D.  Smith,  154;  Hopkins  v.  Calray,  24 
Wend.  204. 

For  proceedings  where  the  justice  is  a  material  witness,  see  also 
Cowen's  Treatise,  §§  981  to  984. 


Oath. 

CHARTER,  §  1354.  The  justices  elected  or  ap- 
pointed pursuant  to  this  act  shall,  before  entering 
upon  their  duties,  take  the  oath  of  office  prescribed  by 
the  constitution,  and  file  the  same  with  the  city 
clerk. 

Salary. 

CHARTER,  §  1355.  The  salary  of  each  of  said 
justices,  except  those  appointed  or  elected  from  the 
boroughs  of  Queens  and  Richmond,  shall  be  six  thou- 
sand dollars  a  year,  to  be  paid  in  equal  monthly  instal- 
ments by  the  proper  officers  of  said  city,  and  the  salary 
of  each  of  said  justices  appointed  or  elected  for  the 
boroughs  of  Queens  and  Richmond  shall  be  five 
thousand  dollars  a  year,  to  be  paid  in  the  same 
manner. 


Char.,  §  1350.  Terms.  15 

Notes  to  Charter  section   1355. 

This  section  supersedes  section  1283  of  the  Consolidation  Act  (Laws 
1882,  chap.  410). 

In  Goetting  v.  City  of  New  York,  29  Misc.  Rep.  717,  61  N.  Y.  Supp. 
334.  it  was  decided  that  a  justice  of  this  court  in  the  borough  of 
Brooklyn,  duly  appointed  January  4,  1S98.  was  entitled  to  his  salary 
for  that  month,  though  the  justices'  courts  as  they  had  existed  were 
continued  under  the  Charter  until  February  1,  1898.  The  late  lamented 
Justice  David  McAdam,  at  Trial  Term,  in  deciding  in  favor  of  the 
justice,  said:  "  Such  a  result  as  contended  for  by  the  city  could  only  fol- 
low the  mistaken  notion  that  a  fixed  salary  belonging  to  a  judicial 
office  must  be  earned  by  the  incumbent  before  it  is  recoverable  by  him. 
Such  a  salary  is  not  measured  by  the  duties  the  official  actually  per- 
forms, or  is  called  upon  to  perform,  and  is  recoverable  without  regard 
to  the  labors  imposed,  or  the  manner  of  their  performance.  Section 
1374  of  the  Charter,  providing  that  after  the  1st  of  January,  1898,  the 
municipal  justices  were  to  become  a  board  of  justices,  to  elect  a  presi- 
dent, and  establish  rides,  showed  that  whatever  duties  were  connected 
with  the  organization  of  the  board,  devolved  upon  the  plaintiff  and  his 
associates  during  January,  and  these  duties  were  performed  by  them. 
There  is  no  variation  in  official  salaries  on  account  of  light  or  heavy 
work,  or  the  total  absence  of  work,  a  feature  that  may  perhaps  have 
attracted  some  to  official  life  and  led  to  the  repeated  use  of  that  much 
abused  term  '  sinecure.'  " 

No  fees  or  perquisites  of  office  to  his  own  use.  Const.,  art.  VI,  §  21. 
And  see  Code  Civ.  Proc,  §   51;   McLarren  v.  Charrier,  5  Paige,  530. 

Execution  or  supplementary  proceedings. —  The  salary  of  justice  can- 
not be  taken  on  execvition  or  in  supplementary  proceedings  while  in 
the  hands  of  the  disbursing  officer.  Remmey  v.  Gedney  and  Kilpatrick 
v.  Gedney,  City  Court  Reports,  vol.  1,  p.  28,  Marine  Court,  Special 
Term,  June   19,   1876. 

Terms. 

CHARTER,  §  1356.  The  terms  of  said  justices  to 
be  elected  pursuant  to  this  title  shall  be  ten  years. 

Notes  to  Charter  section    1356. 

This  section  supersedes  section  1281,  Consolidation  Act  (Laws  1882, 
chap.  410). 

Extending  term  invalid. —  An  act  of  the  legislature  extending  the 
term  of  a  District  Court  justice  is  unconstitutional.  People  ex  rel. 
Fowler  v.  Bull,  46  N.  Y.  57,  distinguishing  People  v.  Batchellor,  22 
N.  Y.  138. 


16        Vacancies,    Districts,   Etc.      Char.,  §§  1357-1355). 

Vacancies. 

CHARTER,  §  1357.  Vacancies  occurring  in  the 
office  of  justice  of  said  court  shall  be  filled  at  the  next 
ensuing  general  election  for  the  unexpired  term  com- 
mencing on  the  first  day  of  January  next  after  said 
election ;  and  the  mayor  of  the  city  shall  appoint  some 
proper  person  to  fill  such  vacancy  in  the  interim  within 
twenty  days  after  the  same  occurs. 

Note    to  Charter  section    1357. 

This  section  supersedes  section  1281,  Consolidation  Act  (Laws  1882, 
chap.  410). 

Districts. 

CHARTER,  §  1358.  The  several  boroughs  compos- 
ing The  City  of  New  York  are  hereby  divided  into 
districts,  in  each  of  which  sessions  of  said  municipal 
court  shall  be  held,  as  specified  in  the  next  five  sections. 

Note    to  Charter  section   1358. 

This  section  supersedes  section  1280,  Consolidation  Act  (Laws  1882, 
chap.  410). 

Borough  of  The  Bronx. 

CHARTER,  §  1359.  In  the  borough  of  The  Bronx 
there  shall  be  two  districts,  as  follow : 

1.  The  first  district  embracing  the  territory  de- 
scribed in  chapter  nine  hundred  and  thirty-four  of  the 
laws  of  eighteen  hundred  and  ninety-five. 

Notes  to  Charter  section   1359.  subdivision  1. 

Districts. —  The  territory  embraced  within  the  first  judicial  district, 
borough  of  The  Bronx,  remains,  notwithstanding  its  annexation  to  the 
city  and  county  of  New  York,  part  of  the  second  judicial  district  and 
department,  and  an  appeal  does  not  lie  from  this  court  therein,  to  the 


Char.,  §  1359.     Borough  of  The  Bronx.  17 

Appellate  Term,  but  to  the  Appellate  Division  of  the  Second  Depart- 
ment. Duckworth  v.  Cunningham,  26  Misc.  Rep.  403,  56  N.  Y.  Supp. 
191;  McTurck  v.  Froussadier,  51  App.  Div.  218,  64  N.  Y.  Supp.  962. 

First  district  boundary. — "All  that  territory  comprised  within  the 
limits  of  the  towns  of  Westchester,  Eastchester,  and  Pelham,  which  has 
not  been  annexed  to  the  city  and  county  of  New  York  at  the  time  of 
the  passage  of  this  act,  which  lies  southerly  of  a  straight  line  drawn 
from  the  point  where  the  northerly  line  of  the  city  of  New  York  meets 
the  center  line  of  the  Bronx  river,  to  the  middle  of  the  channel  between 
Hunter's  and  Glen  Islands,  in  Long  Island  Sound,  and  all  that  terri- 
tory lying  within  the  incorporated  limits  of  the  village  of  Wakefield 
which  lies  northerly  of  said  line,  with  the  inhabitants  and  estates 
therein,  is  hereby  set  off  from  the  county  of  Westchester  and  annexed 
to,  merged  in  and  made  part  of  the  city  and  county  of  New  York,  and 
of  the  Twenty-fourth  ward  of  said  city  and  county,  and  shall  hereafter 
constitute  a  part  of  the  city  and  county  of  New  York,  and  of  the 
Twenty-fourth  ward  of  said  city  and  county."  Laws  1895,  chap.  934, 
§  1. 

2.  The  second  district  embracing  the  remainder  of 
said  borough. 

Notes  to  Charter  section  1359,  subdivision  2. 

This  section  supersedes  section  1280,  subdivision  10  of  the  Con- 
solidation Act   (Laws  1882,  chap.  410). 

Second  district  boundary. —  This  district,  being  the  remainder  of  said 
borough,  comprises  the  Twenty-third  and  Twenty-fourth  wards,  which 
were  created  out  of  portions  of  Westchester  county  and  added  to  New 
York  county  by  Laws  1873,  chapter  613.  By  this  act  the  town  of 
Morrisania  was  made  the  Twenty-third  ward,  and  the  towns  of  West 
Farms  and  Kingsbridge  the  Twenty-fourth  ward  of  the  city  of  New 
York. 

The  Consolidation  Act  (Laws  1882.  chap.  410),  §§  24  and  25,  bounds 
these  wards  as  follows : 

Twenty-third  Ward.  §  24.  The  Twenty-third  ward  shall  include 
all  that  territory  which  lies  east  and  north  of  Harlem  river  and  south 
of  a  line  beginning  at  a  point  on  the  southerly  side  of  the  High  bridge 
across  the  Harlem  river;  thence  running  easterly  on  a  straight  line  to 
a  point  on  Mill  brook,  directly  opposite  to  the  line  formerly  dividing 
central  Morrisania  from  lower  Morrisania,  being  the  former  northerly 
line  of  lower  Morrisania;  thence  easterly  along  said  last-mentioned  line 
to  a  point  one  hundred  and  forty  feet  east  of  Franklin  avenue,  and 
thence  on  a  line  produced  eastwardly  by  the  extension  of  the  middle 
of  the  main  channel  of  the  Bronx  river  of  that  portion  of  said  last- 
2 


18  Borough   of   Manhattan.     Char,,  §  1360. 

mentioned  Line  which  lies  between  the  Third  avenue  and  said  point  in 
said  line,  one  hundred  and  forty  feet  east  of  Franklin  avenue,  said 
territory  being  the  whole  of  the  former  town  of  Morrisania,  and  a 
portion  of  the  former  town  of  West  Farms.  It  shall  also  include  North 
Brothers  Island. 

Tu  ENTT-FOTJRTH  Ward.  §  25.  The  Twenty-fourth  ward  shall  em- 
brace  all  that  territory  lying  north  of  the  Twenty-third  ward  and  south 
of  the  north  boundary  of  the  city,  comprising  the  territory  embraced 
in  the  former  town  of  Kingsbridge,  and  in  that  portion  of  the  former 
town  of   West    Farms   not    included   in  the  Twenty-third  ward. 

The  territory  comprising  the  First  Judicial  district  of  the  borough  of 
The  Bronx  was  added  to  the  Twenty-fourth  ward  by  Laws  of  1895, 
chapter  '.i-'!4.  section  1,  and  together  with  the  above  boundary  ( §  25  of 
the  Consolidation  Act)  comprises  the  whole  of  the  present  Twenty- 
fourth   waid. 

By  section  1578  of  "The  Greater  New  York  Charter,"  these  wards 
were  continued  and  designated  as  follows: 

Wards  in  boroughs  of  Manhattan  and  The  Bronx;  how  designated.— 
The  wards  of  the  corporation  heretofore  known  as  the  mayor,  al- 
dermen, and  commonalty  of  the  city  of  New  York  are  hereby  con- 
tinued, with  their  present  boundaries  and  numbers,  and  shall  be  known 
and  designated  as  wards  of  the  boroughs  of  Manhattan  and  The  Bronx, 
lively.     Laws    1901,  chap.  466,  §   1578. 

Power  to  change  boundaries. —  The  board  of  aldermen  may  from  time 
to  time  by  ordinance  change  the  boundaries  of  wards  and  create  other 
wards  as  the  public  good  and  convenience  may  require.  Laws  1901, 
chap.   466.   §    1582. 

Borough  of  Manhattan. 

CHARTEE,  §  1360.  In  the  borough  of  Manhattan 
there  shall  be  eleven  districts,  as  follows : 

1.  The  first  district  embraces  the  third,  fifth  and 
eighth  wards  of  said  borough  of  Manhattan,  and  all 
that  part  of  the  first  ward  lying  west  of  Broadway 
and  Whitehall  street,  including  Nutten  or  Governors 
Island,  Bedloes  Island,  Bucking  or  Ellis  Island  and 
the  Oyster  Islands. 

Notes  to  Charter  section    1360,   subdivision   1. 
This  section,   with   its  eleven  subdivisions,  supersedes  section  1280  of 
the  Consolidation  Act    (Laws  1882.  chap.  410.  and  1884,  chap.  286). 


Char.,  §  1300.     Borough   of  Manhattan.  ID 

These  wards,  and  the  wards  enumerated  in  the  following  ten  sub- 
divisions of  section  1300,  making  up  the  various  districts,  are  bounded 
and  described  by  the  Consolidation  Act  (Laws  1882,  chap.  410),  §  2,  to 
and  including  S  23.  We  have  already  seen  that  by  the  Charter,  §  1578, 
these  wards  were  continued  and  designated  as  wards  of  the  borough 
of  Manhattan  (see  note  to  §  1359,  subd.  2).  and  that  by  section  1582 
of  said  Charter  the  board  of  aldermen  may  change  the  boundaries  of. 
and  create  other  wards. 

Third  Ward.  §  4.  The  Third  ward  shall  begin  on  the  west  side  of 
Hudson  river,  at  the  northwesterly  corner  of  the  First  ward,  and  run- 
ning thence  due  east  to  the  middle  of  Liberty  street;  then  through  the 
middle  of  Liberty  street  to  the  middle  of  Broadway :  then  through  the 
middle  of  Broadway  to  a  point  opposite  to  the  middle  of  Reade  street; 
then  through  the  middle  of  Reade  street,  in  a  line  running  in  the  same 
direction  across  Hudson  river,  to  low-water  mark,  on  the  west  side 
thereof,  or  so  far  as  the  bounds  of  the  State  extend ;  then  down  the  west 
side  of  Hudson  river,  at  low-water  mark,  or  alon^  the  limits  of  this 
State,  to  the  place  of  beginning. 

Fifth  Ward.  §  6.  The  fifth  ward  shall  begin  at  the  northwesterly 
corner  of  the  Third  ward,  and  run  thence  along  the  northerly  bounds 
thereof  to' the  middle  of  Broadway;  then  through  the  middle  of  Broad- 
way to  the  middle  of  Canal  street;  then  through  the  middle  of  (anal 
street  to  Hudson  river;  then  clue  west  to  low-water  mark,  on  the  west 
side  of  Hudson  river,  or  so  far  as  the  bounds  of  this  State  extend;  then 
down  along  the  west  side  of  Hudson  river,  at  low-water  mark,  or  along 
the  limits  of  this  State,  to  the  place  of  beginning. 

Eighth  Ward.  §  9.  The  Eighth  ward  shall  begin  at  the  northwest- 
erly corner  of  the  Fifth  ward,  and  run  thence  along  the  northerly 
bounds  of  the  said  ward  through  Canal  street  to  the  middle  of  Broad- 
way; then  through  the  middle  of  Broadway  to  a  point  opposite  to  the 
middle  of  Houston  street;  then  through  the  middle  of  Houston  street 
to  a  point  opposite  to  the  middle  of  West  Houston  street ;  then  through 
the  middle  of  West  Houston  street  to  Hudson  river ;  then  due  west  to 
low-water  mark,  on  the  west  side  of  Hudson  river,  or  so  far  as  the  limits 
of  this  State  extend ;  then  down  along  the  west  side  of  Hudson'river,  at 
low-water  mark,  or  along  the  limits  of  this  State,  to  the  place  of  be- 
ginning. 

First  Ward.  The  First  ward  shall  begin  in  the  middle  of  Broad- 
way, at  a  point  where  it  is  intersected  by  the  middle  of  Liberty  street, 
and  run  from  the  said  point  of  intersection,  through  the  middle  of 
Liberty  street,  southeasterly,  to  the  middle  of  Maiden  Lane;  then  down 
the  middle  of  Maiden  Lane,  and  from  thence  in  a  straight  line  running 
in  the  same  direction  across  the  East  river,  to  low-water  mark  on 
Nassau  or  Long  Island :  and  thence  along  Nassau  or  Long  Island  shore, 
at  low- water  mark,  to  the  south  side  of  Red  Hook;   and  then  across 


20  Borough   of   Manhattan.     Char.,  §  L360. 

Hudson  river,  so  as  to  include  Nutten  <>r  Governor's  Island,  Hollow's 
Island,  Bucking  or  Ellis  Island,  and  the  Oyster  Islands,  and  all  the 
waters  of  this  State  in  the  ba\  of  New  York,  and  to  the  southward 
thereof,  and  which  are  not  comprehended  in  any  other  county,  to  low- 
water  mark  on  the  west  side  of  Hudson  river,  or  so  far  as  the  bounds 
of  this  State  extend  then  up  along  the  west  side  of  Hudson  river,  at 
low-water  mark  or  along  the  limits  of  this  State,  to  a  place  due  west 
from  the  middle  of  the  west  end  of  Liberty  street;  then  to  the  middle 
of  Liberty  street;  then  through  the  middle  of  Liberty  street  to  the 
middle  of  Broadway,  at  the  place  of  beginning. 

2.  The  second*  embraces  the  second,  fourth,  sixth 
and  fourteenth  wards,  and  all  that  portion  of  the  first 
ward  lying  south  and  east  of  Broadway  and  White- 
hall street. 

Notes  to  Charter  section   1360,  subdivision  2. 

Second  Ward.  §  3.  The  Second  ward  shall  begin  at  the  southeasterly 
coiner  of  the  First  ward,  and  run  thence  along  the  easterly  bounds 
thereof,  across  the  East  river  to  the  middle  of  Broadway;  then  up  the 
middle  of  Broadway  to  a  point  opposite  the  middle  of  Park  row;  then 
through  the  middle  of  Park  row  to  a  point  opposite  to  the  middle  of 
Spruce  (formerly  George)  street;  then  down  the  middle  of  Spruce 
street  to  the  middle  of  Gold  street;  then  through  the  middle  of  Gold 
street  to  a  point  opposite  to  the  middle  of  Ferry  street ;  then  through 
the  middle  of  Ferry  street,  in  a  line  running  in  the  same  direction 
across  the  East  river  to  Nassau  or  Long  Island,  to  low-water  mark; 
then  along  Nassau  or  Long  Island,  at  low  water,  to  the  place  of 
beginning. 

Fourth  Ward.  §  5.  The  Fourth  ward  shall  begin  at  the  northerly 
corner  of  the  Second  ward,  and  run  thence  through  the  middle  of 
Chatham  street,  to  a  point  opposite  to  the  middle  of  Catharine  street; 
and  thence  through  the  midcue  of  Catharine  street,  in  a  line  running 
in  the  same  direction  across  the  East  river,  to  low-water  mark,  on 
Nassau  or  Long  Island;  then  along  Nassau  or  Long  Island  shore,  at  low- 
water  mark,  to  the  bounds  of  the  Second  ward :  and  then  northwesterly 
along  the  bounds  of  the  Second  ward,  to  the  place  of  beginning. 

Sixth  Ward.  §  7.  The  Sixth  ward  shall  begin  at  a  point  in  the 
middle  of  Broadway,  where  it  is  intersected  by  the  middle  of  Canal 
street,  and  run  thence  through  the  middle  of  Canal  street  to  where  it 

*The  word  "  district  "  is  omitted.  It  is  so  in  the  official  copy  of  the 
act. 


Chae.,  §  13G0.     Borough  ok    Manhattan.  21 

is  intersected  by  the  middle  of  Centre  street;  then  through  the  middle 
of  Centre  street  to  the  middle  of  Walker  street;  then  through  the 
middle  of  Walker  and  Canal  streets  to  the  middle  of  the  Bowery  road; 
then  through  the  middle  of  the  Bowery  road  to  the  middle  of  Chatham 
street ;  then  through  the  middle  of  Chatham  street  and  Park  row  to 
the  middle  of  Broadway,  and  then  through  the  middle  of  Broadway  to 
the  place  of  beginning. 

Fourteenth  Ward.  §  15.  The  Fourteenth  ward  shall  begin  at  a 
point  in  the  middle  of  the  Bowery  road,  where  it  is  intersected  by  the 
middle  of  Walker  street;  then  through  the  middle  of  the  Bowery  road 
to  a  point  opposite  the  middle  of  Houston  street;  then  through  the 
middle  of  Houston  street  to  where  it  is  intersected  by  the  middle  of 
Broadway;  thence  through  the  middle  of  Broadway  to  where  it  is  in- 
tersected by  the  middle  of  Canal  street;  and  then  through  the  middle 
of  Canal,  Centre,  and  Walker  streets,  being  along  the  northerly  bounds 
of  the  Sixth  ward,  to  the  place  of  beginning. 

That  part  of  the  First  ward  included  in  this  district  will  be  found 
in  the  description  of  that  ward  under  the  notes  to  Charter  section  1360, 
subdivision  1. 

3.  The  third  district  embraces  the  ninth  and  fif- 
teenth wards. 

Notes   to   Charter   section    1360,    subdivision    3. 

Ninth  Ward.  §  10.  The  Ninth  ward  shall  begin  at  the  northwesterly 
corner  of  the  Eighth  ward,  and  run  thence  along  the  northerly  bounds 
of  the  said  ward  through  the  middle  of  West  Houston  street  to  the 
middle  of  Hancock  street;  thence  northerly  through  the  middle  of 
Hancock  street  to  the  middle  of  Bleecker  street;  thence  northwesterly 
through  the  middle  of  Bleecker  street  to  the  middle  of  Carmine  street; 
thence  northeasterly  through  the  middle  of  Carmine  street  to  the  middle 
of  Sixth  avenue ;  thence  northerly  through  the  middle  of  Sixth  avenue 
to  the  middle  of  West  Fourteenth  street;  thence  westerly  through  the 
middle  of  West  Fourteenth  street  to  Hudson  river;  then  due  west  to 
low-water  mark  on  the  west  side  of  Hudson  river;  or  so  far  as  the 
limits  of  this  State  extend ;  then  down  along  the  west  side  of  Hudson 
river,  at  low-water  mark,  or  along  the  limits  of  this  State,  to  the  place 
of  beginning. 

Fifteenth  Ward.  §  16.  The  Fifteenth  ward  shall  begin  at  a  point  in 
the  middle  of  Fourteenth  street  where  the  middle  of  Sixth  avenue  inter- 
sects the  middle  of  Fourteenth  street,  and  runs  thence  southerly  through 
the  middle  of  Sixth  avenue  to  the  middle  of  Carmine  street;  thence 
southwesterly  through  the  middle  of  Carmine  street  to  the  middle  of 
Bleecker  street;   thence  southeasterly  through  the  middle  of  Bleecker 


22  Borough    of   Manhattan.     Char.,  §  L360. 

street  to  the  middle  of  Hancock  street;  thence  southerly  through  the 
middle  of  Hancock  street  to  the  middle  of  Houston  street:  thence  east- 
erly through  the  middle  of  Houston  street  to  the  middle  of  the  Bowery 
road;  thence  northerly  along  the  middle  of  the  Bowery  road  and  the 
middle  of  Fourth  avenue  to  the  middle  of  Fourteenth  street,  and  thence 
westerly  along  the  middle  of  Fourteenth  street,  to  the  place  of  be- 
ginning. 

4.  The  fourth  district  embraces  the  tenth  and  seven- 
teenth wards. 

Notes  to  Charter  section   1360,   subdivision  4. 

Tenth  Ward.  §  11.  The  Tenth  ward  shall  begin  at  a  point  in  the 
middle  of  the  Bowery  road,  opposite  to  the  middle  of  Division  street: 
then  through  the  middle  of  Division  street  to  the  middle  of  Norfolk 
street;  then  through  the  middle  of  Norfolk  street  to  the  middle  of  Riv- 
ington  street:  then  through  the  middle  of  Rivington  street  to  the 
middle  of  the  Bowery  road ;  then  through  the  middle  of  the  Bowery  road 
to  tli  '  place  of  beginning. 

Seventeenth  Ward.  §  18.  The  Seventeenth  ward  shall  begin  at  a 
point  formed  by  the  intersection  of  the  middle  of  Fourteenth  street 
with  the  middle  of  Avenue  B,  and  run  thence  southerly  along  the 
middle  of  Avenue  B  to  Houston  street;  thence  across  Houston  street 
to  the  middle  of  Clinton  street:  thence  through  the  middle  of  Clinton 
street  to  middle  of  Rivington  street;  thence  westerly  through  the 
middle  of  Rivington  street  to  the  middle  of  the  Bowery  road;  thence 
northerly  along  the  middle  of  the  Bowery  road  and  Fourth  avenue  to 
the  middle  of  Fourteenth  street:  and  thence  easterly  along  the  middle 
of   Fourteenth    street  to  the  place  of  beginning. 

5.  The  fifth  district  embraces  the  seventh,  eleventh 
and  thirteenth  wards. 

Notes  to  Charter  section  1360,  subdivision  5. 
Seventh  Ward.  §  8.  The  Seventh  ward  shall  begin  at  the  south- 
easterly corner  of  the  Fourth  ward,  and  run  thence  along  the  easterly 
boundary  of  the  Fourth  ward  to  the  middle  of  Division  street;  then 
through  the  middle  of  Division  street  to  the  middle  of  Grand  street; 
then  through  the  middle  of  Grand  street,  in  a  line  running  in  the  same 
direction  across  the  East  river,  to  low-water  mark  on  Nassau  or  Long 
[sland;  then  along  Nassau  or  Long  Island  shore,  at  low-water  mark,  to 
the  place  of  beginning. 


Char.,  §  13 GO.     Borough  of  Manhattan.  23 

Eleventh  Ward.  S  12.  The  Eleventh  ward  shall  begin  at  a  point 
in  the  middle  of  Rivington  street,  where  Clinton  street  intersects  Riv- 
ington  street :  and  run  thence  through  the  middle  of  Clinton  street  to 
the  middle  of  Avenue  B,  and  taen  northerly  through  the  middle  of 
Avenue  B  to  the  middle  of  Fourteenth  street ;  thence  easterly  through 
the  middle  of  East  Fourteenth  street  to  the  East  river,  and  thence  run- 
ning across  the  East  river  to  low-water  mark  on  Long  Island;  then  along 
Long  Island  shore,  at  low-water  mark,  to  a  point,  opposite  the  middle 
of  the  easterly  end  of  Rivington  street;  then  in  a  direct  line  across  the 
East  river  through  the  middle  of  Rivington  street,  to  the  place  of  be- 
ginning. 

Thirteenth  Ward.  §  14.  The  Thirteenth  ward  shall  begin  at  the 
northeasterly  corner  of  the  Seventh  ward,  and  thence  along  the  easterly 
and  northerly  line  of  the  said  ward  through  the  middle  of  Grand  and 
Division  streets,  to  the  middle  of  Norfolk  street;  thence  through  the 
middle  of  Norfolk  street  to  where  it  is  intersected  by  the  middle  of 
Rivington  street :  then  through  the  middle  of  Rivington  street  in  a  line 
running  in  the  same  direction  across  the  East  river,  to  low-water  mark 
on  Nassau  Island ;  and  then  along  the  shore  of  said  island,  at  low- 
water  mark,  to  the  place  of  beginning. 

6.  The  sixth  district  embraces  the  eighteenth  and 
twenty-first  wards. 

Notes  to  Charter  section   1360,   subdivision   6. 

Eighteenth  Ward.  §  19.  The  Eighteenth  ward  shall  begin  at  a 
point  formed  by  the  intersection  of  the  middle  of  Fourteenth  street  with 
the  middle  of  Sixth  avenue,  and  run  thence  northerly  along  the  middle 
of  Sixth  avenue  to  the  middle  of  Twenty-sixth  street ;  thence  easterly 
along  the  middle  of  Twenty-sixth  street  in  a  line  running  in  the  same 
direction  across  the  East  river  to  low-water  mark  on  Long  Island ; 
thence  along  Long  Island  shore,  at  low-water  mark,  to  a  point  opposite 
the  middle  of  the  easterly  end  of  Fourteenth  street ;  and  thence  in  a 
direct  line  across  the  East  river  through  the  middle  of  Fourteenth 
street,  to  the  place   of  beginning. 

Twenty-first  Ward.  §  22.  The  Twenty-first  ward  shall  begin  at  a 
point  formed  by  the  intersection  of  the  middle  of  Twenty-sixth  street 
with  the  middle  of  Sixth  avenue,  and  run  thence  northerly  along  the 
middle  ot  Sixth  avenue  to  the  middle  of  Fortieth  street;  thence  easterly 
along  the  middle  of  Fortieth  street,  in  a  line  running  in  the  same  direc- 
tion across  the  East  river,  to  low-water  mark  on  Long  Island;  thence 
along  Long  Island  shore,  at  low-water  mark,  to  a  point  opposite  the 
middle  ot  the  easterly  end  of  Twenty-sixth  street,  and  thence  in  a  direct 
line  across  the  East  river,  through  the  middle  of  Twenty-sixth  street, 
to  the  place  of  beginning. 


24  Borough  of   Manhattan.     Char.,  §  1360. 

7.  The  seventh  district  embraces  the  nineteenth  ward. 

Note  to  Charter  section  1360,  subdivision  7. 
NINETEENTH  WABD.  §  20.  The  Nineteenth  ward  shall  begin  at  a 
point  formed  by  the  intersection  of  the  middle  of  Fortieth  street  with 
the  middle  of  Sixth  ivenue,  and  run  thence  northerly  along  the  middle 
nt'  Sixth  avenue  to  the  center  of  Fifty-ninth  street;  thence  in  a  line 
running  in  the  same  direction  across  Central  park  to  the  middle  of 
Eighty-sixth  street;  thence  easterly  along  the  middle  of  Eighty-sixth 
street  in  a  line  running  in  the  same  direction  across  the  East  river 
to  low-water  mark  on  Long  Island;  thence  along  Long  Island  shore,  at 
low-water  mark,  to  a  point  opposite  the  middle  of  the  easterly  end  of 
Fortieth  street ;  and  thence  in  a  direct  line  across  the  East  river  along 
the  middle  of  Fortieth  street  to  the  place  of  beginning. 

8.  The  eighth  district  embraces  the  sixteenth  and 
twentieth  wards. 

Notes  to  Charter  section   1360,  subdivision  8. 

Sixteenth  Ward.  §  17.  The  Sixteenth  ward  shall  begin  at  the  north- 
westerly corner  of  the  Fifteenth  ward,  at  a  point  in  the  middle  of 
Fourteenth  street  where  the  middle  of  Sixth  avenue  intersects  the 
middle  of  Fourteenth  street,  and  run  thence  along  the  middle  of  Four- 
teenth street  to  Hudson  river;  thence  westerly  and  along  the  northerly 
boundary  of  the  Ninth  ward  to  low-water  mark  on  the  west  side  of 
Hudson  river,  or  so  far  as  the  limits  of  this  State  extend;  thence  north- 
erly along  the  west  side  of  Hudson  river,  at  low-water  mark,  or  along 
the  limits  of  this  State,  to  a  point  opposite  the  middle  of  the  westerly 
end  of  Twenty-sixth  street;  thence  in  a  direct  line  across  Hudson  river 
through  the  middle  of  Twenty-sixth  street  to  the  middle  of  Sixth 
avenue,  and  thence  southerly  along  the  middle  of  Sixth  avenue  to  the 
place  of  beginning. 

Twentieth  Ward.  §  21.  The  Twentieth  ward  shall  begin  at  a  point 
formed  by  the  intersection  of  the  middle  of  Twenty-sixth  street  with 
the  middle  of  Sixth'  avenue,  and  run  thence  westerly  along  the  middle 
of  Twenty  sixth  street  to  Hudson  river;  thence  westerly  along  the 
northerly  boundary  of  the  Sixteenth  ward  to  low-water  mark  on  the 
west  side  of  Hudson  river,  or  so  far  as  the  limits  of  the  State  extend ; 
thence  northerly  along  the  west  side  of  Hudson  river,  at  low-water  mark, 
or  along  the  limits  of  this  State,  to  a  point  opposite  the  middle  of  the 
westerly  end  of  Fortieth  street;  thence  in  a  direct  line  across  Hudson 
river,  through  the  middle  of  Fortieth  street  to  the  middle  of  Sixth  ave- 
nue, and  thence  southerly  along  the  middle  of  Sixth  avenue  to  the  place 
of  beginning. 


Char.,  §  13G0.     Borough  of  Manhattan.  25 

9.  The  ninth  district  embraces  the  twelfth  ward, 
except  that  portion  thereof  which  lies  west  of  the 
center  line  of  Lenox  or  Sixth  avenue  and  of  the 
Harlem  river  north  of  the  terminus  of  Lenox  avenue. 

Note    to    Charter   section    1360,    subdivision    9. 

Twelfth  Ward.  §  13.  The  Twelfth  ward  shall  include  all  that  part 
of  the  city  and  county  of  New  \ork  lying  northerly  of  a  line  running 
through  the  middle  of  Eighty-sixth  street  from  the  East  to  the  North 
river,  and  south  and  west  of  Harlem  river  and  Spuyten  Duyvil  creek, 
but  including  Randall's  and  Ward's  Islands. 

10.  The  tenth  district  embraces  the  twenty-second 
ward  and  all  that  portion  of  the  twelfth  ward  which 
is  bounded*  on  the  north  by  the  center  line  of  One 
Hundred  and  Tenth  street,  on  the  south  by  the  center 
line  of  Eighty-sixth  street,  on  the  east  by  the  center 
line  of  Sixth  avenue  and  on  the  west  by  the  North 
river. 

Notes  to  Charter  section  1360,  subdivision  10. 

Twenty-second  Ward.  §  23.  The  Twenty-second  ward  shall  begin 
at  a  point  formed  by  the  intersection  of  the  middle  of  Fortieth  street 
with  the  middle  of  Sixth  avenue,  and  run  thence  westerly  along  the 
middle  of  Fortieth  street  to  Hudson  river;  thence  westerly  along  the 
northerly  boundary  of  the  Twentieth  ward  to  low-water  mark  on  the 
west  side  of  Hudson  river,  or  so  far  as  the  limits  of  the  State  extend; 
thence  northerly  along  the  west  side  of  Hudson  river,  at  low-water 
mark,  or  along  the  limits  of  this  State,  to  a  point  opposite  the  middle 
of  the  westerly  end  of  Eighty-sixth  street;  thence  in  a  direct  line 
across  Hudson  river,  through  the  middle  of  Eighty-sixth  street,  to  the 
middle  of  Sixth  avenue,  and  thence  southerly  along  the  middle  of 
Sixth  avenue  to  the  place  of  beginning. 

The  Twelfth  ward  boundaries  are  described  in  the  note  to  Charter 
section  1360,  subdivision  9. 

The  former  Tenth  Judicial  District  Court,  which  comprised  the 
Twenty-third  and  Twenty-fourth  wards,  is  now  the  Second  district  of 
"  The  Municipal  Court  of  the  City  of  New  York "  in  the  borough  of 
The  Bronx. 


26  Borough   ov  Brooklyn.      Char.,  §  1361. 

11.  The  eleventh  district  embraces  that  portion  of 
the  twelfth  ward  which  lies  north  of  the  center  line 
of  West  One  Hundred  and  Tenth  street  and  west  of 
the  center  line  of  Lenox  or  Sixth  avenue  and  of  the 
Harlem  river  north  of  the  terminus  of  Lenox  or  Sixth 
avenue. 

Note    to   Charter   section    1360,    subdivision    11. 

The  boundary  of  the  Twelfth  ward  will  be  found  under  Charter  sec- 
tion  1300.  subdivision  9. 

Borough  of  Brooklyn. 

CHARTER,  §  1361.  In  the  borough  of  Brooklyn 
there  shall  be  five  districts,  as  follows  : 

1.  The  first  district  embraces  the  first,  second, 
third,  fourth,  fifth,  sixth,  tenth  and  twelfth  wards. 

Notes   to  Charter  section   1361,   subdivision   1. 

These  wards  are  bounded  and  described  as  follows: 

The  First  Ward  of  the  city  shall  comprise  the  following  district, 
namely:  Beginning  at  a  point  on  Fulton  avenue  where  the  center  lines 
of  Fulton  street  and  Boerum  pla;e  intersect  each  other,  and  running 
thence  northwesterly  along  the  center  of  Fulton  street,  and  a  line  in 
continuation  thereof  to  the  East  river ;  thence  southwesterly  along  the 
East  river  to  a  point  opposite  the  center  of  Atlantic  avenue,  or  a  line 
in  continuation  thereof;  thence  easterly  along  the  center  of  Atlantic 
street  to  the  center  of  Boerum  place;  and  thence  northerly  along  the 
center  of  Boerum  place  to  the  place  of  beginning.  Laws  1S88,  chap. 
583,   §    2. 

The  Second  Ward  of  said  city  shall  comprise  the  following  district, 
namely:  Beginning  at  a  point  on  the  East  river  at  the  center  line  of 
Fulton  street  continued,  and  running  thence  southeasterly  along  the 
center  line  of  Fulton  street  to  a  point  opposite  the  center  of  Sands 
street;  thence  easterly  along  the  center  of  Sands  street  to  the  center  of 
Bridge  street;  thence  northerly  along  the  center  of  Bridge  street  and  a 
line  in  continuation  thereof  to  the  East  river ;  and  thence  westerly 
along  the  East  river  to  the  place  of  beginning.  Laws  1888,  chap.  583, 
§  3. 

The  Third  Ward  of  said  city  shall  comprise  the  following  district, 
namely:     Beginning  at  a  point  formed  by  the  intersection  of  the  center 


Char.,  §  1361.      Borough   of  Brooklyn.  27 

of  Boerum  and  Fulton  streets;  thence  easterly  along  the  center  of  Ful- 
ton street  to  the  intersection  of  Fulton  avenue  and  Flatbush  avenue ; 
thence  southerly  along  the  center  of  Flatbush  avenue  to  the  center  of 
Fourth  avenue ;  thence  southwesterly  along  the  center  of  Fourth  avenue 
to  the  center  of  Bergen  street ;  thence  northwesterly  along  the  center 
of  Bergen  street  to  the  center  of  Court  street;  thence  northerly  along 
the  center  of  Court  street  to  the  center  of  Atlantic  street:  thence  along 
the  center  of  Atlantic  street  to  the  center  of  Boerum  plaee.  and  thence 
northeasterly  along  the  center  of  Boerum  place  to  the  place  of  begin- 
ning.    Laws   1888,  ehap.  5S3,  §   4. 

The  Fouuth  Wakd  of  said  city  shall  comprise  the  following  district, 
namely:  Beginning  at  a  point  where  the  center  lines  of  Sands  street 
and  Fulton  street  intersect  each  other,  and  running  thence  easterly 
along  the  center  of  Sands  street  to  the  center  of  Bridge  street:  thence 
southerly  along  the  center  of  Bridge  street  to  the  center  of  Fulton 
street;  and  thence  northwesterly  along  the  center  of  Fulton  avenue  and 
Fulton  street  to  the  place  of  beginning.     Laws  1888,  chap.  583,  §  5. 

The  Fifth  Ward  of  said  city  shall  comprise  the  following  district, 
namely:  Beginning  at  a  point  where  the  center  lines  of  Bridge  street 
and  Johnson  street  intersect  each  other,  and  running  thence  easterly 
along  the  center  of  Johnson  street  to  the  center  of  Navy  street ;  thence 
northerly  along  the  center  of  Navy  street  to  the  northerly  side  of 
Nassau  street ;  thence  easterly  along  the  northerly  side  of  Nassau 
street  to  the  southwesterly  corner  of  the  United  States  navy  yard: 
thence  northerly,  northwesterly  and  northeasterly  along  the  United 
States  navy  yard  to  the  East  river:  thence  westerly  along  the  East  river 
to  a  point  on  the  continuation  of  the  center  line  of  Bridge  street: 
thence  southerly  along  the  center  of  Bridge  street  to  the  place  of  be- 
ginning.    Laws   1888,  chap.  583.   §  6. 

The  Sixth  \\  ard  of  said  city  shall  comprise  the  following  district, 
namely:  Beginning  on  the  East  river,  at  the  center  of  Atlantic  street, 
thence  easterly  along  the  center  of  Atlantic  street  to  the  center  of  Court 
street :  thence  southerly  along  the  center  of  Court  street  to  the  center 
of  Fourth  place:  thence  westerly  along  the  center  of  Fourth  place  to 
the  center  of  Henry  street :  thence  southeasterly  along  the  center  of 
Henry  street  to  the  center  of  Coles  street ;  thence  westerly  along  the 
center  of  Coles  street  to  the  center  of  Hamilton  avenue;  thence  along 
the  center  of  Hamilton  avenue  to  the  East  river ;  thence  along  the  East 
river  to  the  place  of  beginning.     Laws   1888,  ehap.  583,  §  7. 

The  Tenth  Ward  of  said  city  shall  comprise  the  following  district, 
namely:  Beginning  at  a  point  formed  by  the  intersection  of  the  center 
of  Fourth  avenue  and  Bergen  street;  thence  running  southwesterly 
along  the  center  of  Fourth  avenue  to  the  center  of  First  street ;  thence 
northwesterly  along  the  center  of  First  street  to  the  center  of  Gowanus 
canal ;  thence  southerly  and  westerly  along  the  center  line  of  Gowanus 


28  Borough  of  Brooklyn.   Char.,  §  1361. 

canal  to  a  point  where  a  Line  drawn  in  continuation  of  the  center  line  of 
Fifth  street  would  intersect  the  center  line  <>i  Gowanus  canal;  thence 
northwesterly  along  said  line  drawn  in  continuation  of  the  center  line 
of  Fifth  street  to  the  center  line  of  Fifth  street;  thence  northwesterly 
along  the  center  of  Fifth  street  and  Fourth  place  to  the  center  of  Court 
street;  thence  along  the  center  of  Court  street  to  the  center  of  Bergen 
street,  and  thence  southeasterly  along  the  center  of  Bergen  street  to 
the  place  of  beginning.     Laws  1888.  chap.  583,  §   11. 

The  Twelfth  Ward  of  said  city  shall  comprise  the  following  dis- 
trict, namely:  Beginning  in  the  East  river  on  the  center  line  of  Ham- 
ilton avenue;  thence  southerly  along  the  center  line  of  Hamilton  ave- 
nue to  the  center  of  Coles  street ;  thence  southeasterly  along  the  center 
of  Coles  street  to  the  center  of  Henry  street;  thence  northerly  along 
the  center  of  Henry  street  to  the  center  of  Fourth  place;  thence  south- 
easterly along  the  center  of  Fourth  place  to  the  center  of  Smith  street; 
thence  northerly  along  the  center  of  Smith  street  to  the  center  of  Fifth 
street ;  thence  southeasterly  along  the  center  of  Fifth  street  and 
along  a  line  drawn  in  continuation  of  Fifth  street  to  a  point  where 
said  line  would  intersect  the  center  of  Gowanus  canal;  thence  south- 
westerly along  the  center  line  of  Gowanus  canal  to  Gowanus  bay; 
thence  along  the  Gowanus  bay  and  East  river  to  the  place  of  begin- 
ning.   Laws  1888,  chap.  583,  §  13. 

2.  The  second  district  embraces  the  seventh,  ninth, 
eleventh,  twentieth,  twenty-first,  and  twenty-third 
wards. 

Notes  to  Charter  section   1361,  subdivision   2. 

By  Laws  1001,  chapter  140,  the  Eighth  ward  was  taken  out  of  this 
district  and  added  to  the  Fifth  district. 

These  wards  are  bounded  and  described  as  follows: 
The  Seventh  Ward  of  said  city  shall  comprise  the  following  dis- 
trict, namely:  Beginning  at  a  point  formed  by  the  intersection  of  the 
middle  lines  of  Bedford  and  Flushing  avenues,  running  thence  south- 
erly along  the  center  line  of  Bedford  avenue  to  its  intersection  with 
the  middle  line  of  Brevoort  place,  and  thence  westerly  along  the  middle 
line  of  Brevoort  place  to  the  middle  line  of  Franklin  avenue;  thence 
southerly  along  the  middle  line  of  Franklin  avenue  to  the  middle  line 
of  Atlantic  avenue;  thence  westerly  along  the  middle  line  of  Atlantic 
avenue  to  the  middle  line  of  Washington  avenue ;  thence  northerly  along 
the  middle  line  of  Washington  avenue  to  the  middle  line  of  Flushing 
avenue;  thence  easterly  along  the  middle  line  of  Flushing  avenue  to  the 
point  or  place  of  beginning.     Laws  1888,  chap.  583,   §  8. 


Char.,  §  1361.      Borough  or  Brooklyn.  29 

The  NINTH  Ward  of  the  city  of  Brooklyn  shall  comprise  the  follow- 
ing district,  namely :  Beginning  at  a  point  where  the  center  lines  of 
Flatbush  and  Fourth  avenues  intersect,  running  thence  southeasterly 
along  the  center  line  of  Flatbush  avenue  to  the  center  line  of  Atlantic 
avenue :  thence  southeasterly  along  the  center  line  of  Atlantic  avenue 
to  the  center  line  of  Franklin  avenue:  thence  southwesterly  along  the 
center  line  of  Franklin  avenue  to  the  line  separating  the  city  of 
Brooklyn  from  the  town  of  Flatbush ;  thence  in  a  westerly  direction 
along  said  line  as  the  same  now  runs  to  the  center  line  of  Flatbush 
avenue;  thence  northwesterly  along  the  center  line  of  Flatbush  avenue 
to  the  southern  boundary  of  the  Plaza ;  thence  westerly  along  the 
southern  boundary  of  the  Plaza  to  the  center  line  of  Ninth  avenue ; 
thence  northerly  along  a  line  in  continuation  of  the  center  line  of 
Ninth  avenue  to  a  point  where  said  line  would  intersect  a  line  drawn 
in  continuation  of  the  center  line  of  Union  street;  thence  northwesterly 
along  said  line  and  along  the  center  line  of  Union  street  to  the  center 
line  of  Fourth  avenue,  and  thence  northeasterly  along  the  center  line 
of  Fourth  avenue  to  the  point  or  place  of  beginning.  Ordinances  of 
City  of  Brooklyn,  1892,  vol.  2,  p.  894. 

The  Eleventh  Ward  of  said  city  shall  comprise  the  following  dis- 
trict, namely:  Beginning  at  a  point  where  the  center  lines  of  Fulton 
street  and  Bridge  street  intersect  each  other ;  thence  running  northerly 
along  the  center  of  Bridge  street  to  the  center  of  Johnson  street : 
thence  easterly  along  the  center  of  Johnson  street  to  the  center  of 
Navy  street :  thence  northerly  along  the  center  of  Navy  street  to  the 
center  of  Nassau  street:  thence  easterly  along  Nassau  street  to  the 
southwesterly  corner  of  the  United  States  navy  yard;  thence  northerly 
along  the  same  to  the  East  river :  thence  easterly  along  the  East 
river  and  Wallabout  bay  to  the  center  line  of  Portland  avenue,  or  a 
line  in  continuation  thereof:  thence  southerly  along  the  center  of 
Portland  avenue  in  a  straight  line,  across  Washington  park  to  the 
center  of  Atlantic  avenue:  thence  westerly  along  the  center  line  of 
Atlantic  avenue  to  a  point  where  the  center  line  of  Atlantic  street  and 
Flatbush  avenue  intersect  each  other ;  thence  northwesterly  along  the 
center  of  Flatbush  avenue  to  the  center  of  Fulton  street,  and  thence 
westerly  along  the  center  of  Fulton  street  to  the  point  or  place  of 
beginning.     Laws  1888.  chap.  583,  §  12. 

The  Twentieth  Ward  of  said  city  shall  comprise  the  following  dis- 
trict, namely:  Beginning  at  a  point  formed  by  the  intersection  of  the 
center  line  of  Washington  avenue  with  the  center  of  Atlantic  avenue: 
running  thence  westerly  along  the  center  line  of  Atlantic  avenue  to  the 
center  line  of  Portland  avenue;  thence  northerly  along  the  center  line  of 
Portland  avenue  in  a  straight  line  across  Washington  park  to  the 
East  river  or  Wallabout  bay:  thence  easterly  along  the  East  river  or 
Wallabout  bay  to  the  center  of  Washington  avenue,  and  thence  south- 


30  Borough  of  Brooklyn.   Gear.,  §  1361. 

erly  along  the  center  of  Washington  avenue  to  the  center  of  Atlantic 
avenue  to  the  point  or  place  of  beginning.  Laws  1888,  phap.  .383,  §  12. 
The  Twenty-First  Ward  of  the  city  of  Brooklyn  shall  comprise  the 
following  district,  namely:  Beginning  at  a  point  formed  by  the  inter- 
section of  the  middle  lines  of  Bedford  and  Lafayette  avenues;  thence 
northerly  along  the  middle  line  of  Bedford  avenue  to  its  intersection 
with  the  middle  line  of  Flushing  avenue;  thence  easterly  along  the 
middle  line  of  Flushing  avenue  to  its  intersection  with  the  middle  line 
of  Broadway;  thence  southeasterly  along  the  middle  line  of  Broad- 
way to  its  intersection  with  the  middle  line  of  Lafayette  avenue; 
thence  westerly  along  the  middle  line  of  Lafayette  avenue  to  the  place 
or  point  of  beginning.     Laws  1888,  chap.  .">s:;.  §  22. 

The  Twenty-third  Ward  of  the  city  of  Brooklyn  shall  comprise  the 
following  district,  namely:  Commencing  at  the  intersection  of  Bed- 
ford and  Lafayette  avenues:  running  thence  easterly  along  the  center 
line  of  Lafayette  avenue  to  the  center  line  of  Reid  avenue:  thence 
southerly  along  the  center  line  of  Reid  avenue  to  the  center  line  of 
Fulton  street  ;  thence  westerly  along  the  center  line  of  Fulton  street  to 
the  center  of  I  tica  avenue:  thence  southerly  along  the  center  of  L'tica 
avenue  to  the  center  of  Atlantic  avenue :  thence  westerly  along  the 
center  of  Atlantic  avenue  to  the  center  of  Franklin  avenue:  thence 
northerly  along  the  center  of  Franklin  avenue  to  the  center  of  Brevoort 
place;  thence  easterly  along  the  center  of  Brevoort  place  to  the  center 
of  Bedford  avenue ;  thence  northerly  along  the  center  of  Bradford  ave- 
nue to  the  place  of  beginning.  Ordinances  of  City  of  Brooklyn,  1892, 
vol.  2,  p.  898. 

3.  The  third  district  embraces  the  thirteenth,  four- 
teenth, fifteenth,  sixteenth,  seventeenth,  eighteenth 
and  nineteenth  wards. 

Notes  to  Charter  section   1361,  subdivision   3. 

These  wards  are  hounded  and  described  as  follows: 
The  Thirteenth  Ward  of  the  city  of  Brooklyn  shall  comprise  the 
following  district,  namely:  Beginning  at  the  permanent  water  line  on 
the  easterly  side  of  the  Fast  river  where  the  same  would  be  intersected 
by  the  center  line  of  Division  avenue:  thence  in  an  easterly  direction 
along  the  said  center  line  of  Divisicn  avenue  to  the  center  line  of  Rod- 
ney street;  thence  in  a  northeasterly  direction  along  the  center  line  of 
Rodney  street  to  the  center  line  of  (hand  street:  thence  in  a  north- 
westerly direction  alone  the  center  line  of  (hand  street  to  the  per- 
manent line  of  the  East  river:  thence  southwesterly  along  the  per- 
manent line   of   the    Last   river   to  the  center  line  of  Division   avenue, 


Char.,  §  1361.   Borough  of  Brooklyn.  31 

the  place  of  beginning.  Ordinances  of  City  of  Brooklyn,  1892,  vol.  2, 
p.  895.) 

The  Fourteenth  Ward  of  said  city  shall  comprise  the  following 
district,  namely:  Beginning  at  the  easterly  permanent  line  on  the 
East  river,  where  the  same  would  be  intersected  by  a  line  drawn  through 
the  center  of  Grand  street ;  thence  running  in  a  southeasterly  direction 
along  the  center  of  Grand  street  to  the  center  of  the  intersection  of 
Grand  and  Rodney  streets ;  thence  in  a  northeasterly  direction  along 
the  center  of  Rodney  street  to  the  center  of  the  intersection  of  North 
Second  and  Rodney  streets ;  thence  in  an  easterly  direction  along  the 
center  of  North  Second  street  to  the  center  of  the  intersection  of  North 
Second  street  and  Union  avenue;  thence  in  a  northerly  direction  along 
the  center  of  Union  avenue  to  the  center  of  the  intersection  of  Union 
avenue  by  Driggs  street;  thence  in  a  northeasterly  direction  along  the 
center  of  Driggs  street  to  the  center  of  the  intersection  of  North  Four- 
teenth street  by  fifth  street;  thence  in  a  northwesterly  direction  along 
the  center  of  North  Fourteenth  street  to  the  center  of  the  intersection 
oi  Nortn  Fourteenth  and  Kent  avenue;  thence  in  a  southwesterly  direc- 
tion along  the  center  of  First  and  North  Thirteenth  streets;  thence  in 
a  northwesterly  direction  along  the  center  of  North  Thirteenth  street 
to  the  easterly  permanent  line  of  East  river;  thence  in  southwesterly 
direction  along  the  easterly  permanent  line  of  East  river  to  the  center 
of  Grand  street,  the  place  of  beginning.     Laws  1888.  chap.  .".s:i,  §   15. 

The  Fifteenth  Ward  of  said  city  shall  comprise  the  following  dis- 
trict, namely:  Beginning  at  the  center  of  tlie  intersection  of  South 
Second  and  Rodney  streets;  thence  running  in  a  southeasterly  direction 
along  the  center  of  South  Second  street  to  the  center  of  the  intersection 
of  South  Second  street  by  Union  avenue ;  thence  in  a  northerly  direc- 
tion along  the  center  of  Union  avenue  to  the  center  of  the  intersection 
of  Ten  Eyck  street  by  Union  avenue;  thence  in  an  easterly  direction 
along  the  center  of  Ten  Eyck  street  to  the  center  of  the  intersection 
of  Wyckoff  street  and  Bushwick  avenue;  thence  in  a  northwesterly 
direction  along  the  center  of  Bushwick  avenue  to  the  center  of  the  in- 
tersection of  Bushwick  avenue  and  North  Second  street ;  thence  in  a 
westerly  direction  along  the  center  of  North  Second  street  to  the  center 
of  the  intersection  of  North  Second  street  and  Humboldt  street;  thence 
in  a  northerly  direction  along  the  center  of  Humboldt  street ;  thence  in 
a  northerly  direction  along  the  center  of  Smith  street  to  the  center  of 
the  intersection  of  Humboldt  street  and  Richardson  street ;  thence  in  a 
westerly  direction  along  the  center  of  Richardson  street  to  the  center 
of  the  intersection  of  Richardson  and  Leonard  streets;  thence  in  a 
northerly  direction  along  the  center  of  Leonard  street  to  the  center  of 
the  intersection  of  Leonard  and  Van  Pelt  streets;  thence  in  a  westerly 
direction  along  the  center  of  Van  Pelt  street  to  the  center  of  the  inter- 


32  Bobough    of    Brooklyn.       CHAR.,  §  1361. 

section  of  Van  Pelt  street  by  Driggs  street  ;  thence  in  a  southwesterly 
direction  along  the  center  of  Driggs  street  to  the  center  of  the  inter- 
section of  Union  avenue  by  Driggs  street;  thence  in  a  southerly  direc- 
tion along  the  center  of  Union  avenue  to  the  center  of  the  intersection 
of  Union  avenue  and  North  Second  street  :  thence  in  a  westerly  direc- 
tion along  the  center  >f  North  Second  street  to  the  center  of  the  inter- 
section  of  Rodney  street  by  North  Second  street;  thence  in  a  south- 
westerly direction  along  the  center  of  Rodney  street  to  the  intersection 
of  Rodney  and  South  Second  streets,  the  place  of  beginning.  Laws 
1888,  chap.  583,  §  16. 

The  Sixteenth  Ward  of  the  said  city  shall  comprise  the  following 
district,  namely:  Beginning  at  the  intersection  of  the  center  lines  of 
Rodney  street  on.  Broadway:  running  thence  southeasterly  along  the 
center  line  of  Broadway  to  the  center  line  of  Flushing  avenue;  thence 
in  an  easterly  direction  along  the  center  line  of  Flushing  avenue  to  the 
center  line  of  Bushwick  avenue  or  road  as  the  same  was  originally  laid 
down  on  the  commissioner's  map  of  the  town  of  Bushwick;  thence  in  a 
northerly,  northwesterly  and  northeasterly  direction  along  the  center 
line  of  Bushwick  avenue  or  road  as  the  same  was  so  laid  down  to  the 
center  line  of  Ten  Eyck  street;  thence  westerly  along  the  center  line  of 
Ten  Eyck  street  to  the  center  line  of  Union  avenue;  thence  in  a  south- 
erly direction  along  the  center  line  of  Union  avenue  to  the  center  line 
of  South  Second  street;  thence  in  a  northwesterly  direction  along  the 
center  line  of  South  Second  street  to  the  center  line  of  Rodney  street; 
thence  in  a  southwesterly  direction  along  the  center  line  of  Rodney 
street  to  the  center  line  of  Broadway,  the  place  of  beginning.  Ordi- 
nances of  City  of  Brooklyn,  1892,  vol.  2,  p.  895. 

The  Seventeenth  Ward  of  said  city  shall  comprise  the  folloAving 
district,  namely:  Beginning  at  the  easterly  permanent  line  of  the  East 
river,  where  the  same  would  be  intersected  by  a  line  drawn  through  the 
center  of  North  Thirteenth  street ;  thence  running  in  a  southeasterly 
direction  along  the  center  of  North  Thirteenth  street  to  the  center  or 
the  intersection  of  North  Thirteenth  and  Kent  avenue;  thence  north- 
easterly  along  the  center  of  Kent  avenue  to  the  center  of  the  intersec- 
tion of  North  Fourteenth  and  First  streets;  thence  in  a  southeasterly 
direction  along  the  center  of  North  Fourteenth  street  to  the  center  of 
the  interse*  tion  of  North  Fourteenth  street  by  Van  Cott  avenue;  thence 
along  the  center  of  Van  Cott  avenue  in  a  northeasterly  direction  to  the 
center  of  the  intersection  of  Van  Pelt  street  by  Van  Cott  avenue; 
thence  in  an  easterly  direction  along  the  center  of  Van  Pelt  street  to  the 
center  of  the  intersection  of  Van  Pelt  and  Leonard  streets:  thence  in  a 
southerly  direction  along  the  center  of  Leonard  street  to  the  center  of 
the  intersection  of  Leonard  and  Richardson  streets:  thence  in  an  east- 
erly direction  along  the  center  of  Richardson  street  to  the  center  of  the 


Char.,  §  1361.   Borough  of  Brooklyn.  33 

intersection  of  Meeker  avenue  by  Richardson  street;  thence  in  a  north- 
easterly direction  along  the  center  of  Meeker  avenue,  in  all  its  turnings, 
to  the  center  of  Newtown  creek;  thence  in  a  northwesterly  direction 
along  the  center  of  Newtown  creek  in  all  its  meanderings,  to  the  per- 
manent line  of  the  East  river  to  a  point  where  the  permanent  line  of 
the  East  river  would  intersect  the  center  of  Newtown  creek  if  con- 
tinued;  thence  along  the  easterly  permanent  line  of  the  East  river  in  a 
southerly  direction  to  the  center  of  North  Thirteenth  street  to  the  place 
of  beginning.     Laws  1888,  chap.  583,  §   18. 

The  Eighteenth  Ward  of  said  city  shall  comprise  the  following  dis- 
trict, namely:  Beginning  at  the  center  of  the  intersection  of  Richard- 
son street  and  Meeker  avenue;  thence  running  in  a  northeasterly  direc- 
tion along  the  center  of  Meeker  avenue  to  the  center  of  Newtown  creek; 
thence  in  a  southeasterly  direction  along  the  center  of  Newtown  creek 
to  the  line  of  the  county  of  Queens;  thence  southeasterly  along  the  line 
of  the  county  of  Queens  to  the  center  of  Flushing  avenue  at  its  inter- 
section with  the  said  line  of  the  county  of  Queens;  thence  southwest- 
erly and  westerly  along  the  center  of  Flushing  avenue  until  it  inter- 
sects the  center  of  Bushwick  avenue  or  road  as  the  same  was  originally 
laid  down  on  the  commissioner's  map  of  the  town  of  Bushwick ;  thence 
along  the  center  of  said  Bushwick  avenue  or  road  as  the  same  was  so 
laid  down  to  the  center  of  Ten  Eyck  street;  thence  along  the  center 
line  of  Bushwick  as  the  same  now  exists  to  the  center  of  the  intersection 
of  Bushwick  avenue  and  North  Second  street;  thence  westerly  along 
the  center  of  North  Second  street  to  the  center  of  the  intersection  of 
North  Second  and  Humboldt  streets;  thence  northerly  along  the  center 
of  Humboldt  street  to  the  center  of  the  intersection  of  Humboldt  and 
Richardson  streets ;  thence  along  the  center  of  Richardson  street  to 
the  point  or  place  of  beginning.  Ordinances  of  City  of  Brooklyn,  1892, 
vol.  2,  p.  896. 

The  Nineteenth  Ward  of  the  city  of  Brooklyn  shall  comprise  the 
following  district,  namely:  Beginning  at  a  point  formed  by  the  inter- 
section of  the  center  line  of  Broadway  with  the  center  line  of  Flushing 
avenue,  running  thence  westerly  along  the  center  line  of  Flushing  ave- 
nue to  the  center  line  of  Washington  avenue;  thence  northerly  along 
the  center  line  of  Washington  avenue  to  the  Wallabout  canal ;  thence 
northwesterly  along  said  canal  to  Wallabout  bay;  thence  northwesterly 
along  said  Wallabout  bay  to  the  center  line  of  Division  avenue ;  thence 
easterly  along  the  center  line  of  Division  avenue  to  the  center  line  of 
Rodney  street;  thence  northeasterly  along  the  center  line  of  Rodney 
street  to  the  center  line  of  Broadway;  thence  southeasterly  along  the 
center  line  of  Broadway  to  Flushing  avenue,  at  the  point  or  place  of 
beginning.     Ordinances  of  City  of  Brooklyn,  1892,  vol.  2,  p.  896. 

3 


34  Borough  or  Brooklyn.      Char.,  §  1361. 

4.  The  fourth  district  embraces  the  twenty-fourth, 
twenty-fifth,  twenty -sixth,  twenty-seventh  and  twenty- 
eighth  wards. 

Notes  to  Charter  section  1361,  subdivision  4. 

These  wards  are  bounded  and  described  as  follows: 

The  Twenty-fourth  Ward  of  the  city  of  Brooklyn  shall  comprise 
the  following  district,  namely:  Beginning  at  a  point  formed  by  the 
intersection  of  Franklin  and  Atlantic  avenues,  running  thence  in  a 
southerly  direction  along  the  middle  line  of  Franklin  avenue  to  the  city 
line;  thence  ir  an  easterly  direction  along  the  city  line  to  the  middle 
line  of  Atlantic  avenue,  and  thence  in  a  westerly  direction  along  the 
middle  line  of  Atlantic  avenue  to  the  point  or  place  of  beginning. 
Laws   1888,  chap.   583,   §  25. 

The  Twenty-fifth  Ward  of  the  city  of  Brooklyn  shall  comprise  the 
following  district,  namely:  Commencing  at  the  center  line  of  Reid  and 
Lafayette  avenues ;  thence  southerly  along  the  center  of  Reid  avenue 
to  the  center  of  Fulton  street;  thence  westerly  along  the  center  of 
Fulton  street  to  the  center  of  Utica  avenue ;  thence  southerly  along  the 
center  of  Utica  avenue  to  the  center  of  Atlantic  avenue ;  thence  easterly 
along  the  center  of  Atlantic  avenue  to  the  former  boundary  line  between 
the  city  of  Brooklyn  and  the  town  of  New  Lots;  thence  northerly  along 
said  boundary  line  to  the  center  line  of  Broadway;  thence  along  the 
center  of  Broadway  to  the  center  of  Lafayette  avenue;  thence  westerly 
along  the  center  of  Lafayette  avenue  to  the  place  of  beginning.  Ordi- 
nances of  City  of  Brooklyn,  1892,  vol.  2,  p.  898. 

The  Twenty-sixth  Ward  of  the  city  of  Brooklyn  shall  comprise  the 
following  district,  to  wit:  All  that  portion  of  the  county  of  Kings, 
formerly  known  as  the  town  of  New  Lots.     Laws  1888,  chap.  583,  §  27. 

The  Twenty-seventh  Ward  of  said  city  shall  comprise  the  following 
district,  namely:  Beginning  at  the  center  of  the  intersection  of  Broad- 
way and  Kosciusko  street;  thence  running  in  a  northeasterly  direction 
along  the  center  of  Kosciusko  street  to  the  intersection  of  Bushwick 
avenue  and  Kosciusko  street ;  thence  running  in  a  northwesterly  direc- 
tion along  Bushwick  avenue  to  the  intersection  of  Bushwick  avenue 
and  Stockholm  street;  thence  in  a  northeasterly  direction  along  the 
center  of  Stockholm  street  to  the  intersection  of  the  line  of  the  county 
of  Queens;  thence  northerly  or  nearly  so  along  the  line  of  the  county  of 
Queens  to  the  center  of  Flushing  avenue  at  its  intersection  with  the 
said  line  of  the  county  of  Queens;  thence  southwesterly  and  westerly 
along  the  center  of  Flushing  avenue  to  the  center  of  the  intersection  of 
Broadway;  thence  southwesterly  along  the  center  of  Broadway  to 
the  point  or  place  of  beginning.     Laws  1892,  chap.  57. 


Char.,  §  1361.   Borough  of  Brooklyn.  35 

The  Twenty-eighth  Ward  of  the  said  city  shall  comprise  the  fol- 
lowing district,  namely:  Beginning  at  the  center  of  the  intersection  of 
Broadway  and  Kosciusko  street ;  thence  running  in  a  northeasterly  di- 
rection along  the  center  of  Kosciusko  street  to  the  intersection  of  Bush- 
wick  avenue  and  Kosciusko  street ;  thence  running  in  a  northwesterly 
direction  along  the  center  of  Bushwick  avenue  to  the  intersection  uf 
Bushwick  avenue  and  Stockholm  street ;  thence  in  a  northeasterly  di- 
rection along  the  center  of  Stockholm  street  to  the  intersection  of  the 
line  of  the  county  of  Queens;  thence  in  a  southerly  direction  along  the 
line  of  the  county  of  Queens  to  the  westerly  line  of  the  Twenty-sixth 
ward,  formerly  the  town  of  New  Lots ;  thence  southwesterly  along  the 
said  line  to  the  intersection  of  the  center  of  Broadway;  thence  north- 
westerly along  the  center  of  Broadway  to  the  place  of  beginning.  Laws 
1892,  chap.  57. 

5.  The  fifth  district  embraces  the  eighth,  twenty- 
second,  twenty-ninth,  thirtieth,  thirty-first  and  thirty, 
second  wards. 

Notes  to  Charter  section  1361,  subdivision  5. 

By  Laws  of  1901,  chapter  140,  the  Eighth  ward  was  taken  out  of 
the  Second  district  and  added  to  this  district. 

These  wards  are  bounded  and  described  as  follows: 

The  Eighth  Ward  of  the  city  of  Brooklyn  shall  comprise  the  follow- 
ing district,  namely:  Beginning  at  a  point  where  the  center  line  of 
Prospect  avenue  intersects  Gowanus  bay  and  running  thence  south- 
easterly along  the  center  line  of  Prospect  avenue  to  the  center  line  of 
Sixth  avenue ;  thence  southwesterly  along  the  center  line  of  Sixth  ave- 
nue to  the  center  line  of  Twenty-third  street;  thence  southeasterly 
along  the  center  line  of  Twenty-third  street  to  the  center  line  of  Seventh 
avenue;  thence  northeasterly  along  the  center  line  of  Seventh  avenue 
to  the  southerly  side  of  Twentieth  street ;  thence  southeasterly  along  the 
southerly  side  of  Twentieth  street  to  a  point  distant  one  hundred  feet 
northwesterly  from  the  corner  formed  by  the  intersection  of  the  south- 
erly side  of  Twentieth  street  with  the  westerly  side  of  Ninth  avenue; 
thence  southwesterly  on  a  line  parallel  with  and  distant  one  hundred 
feet  from  the  westerly  side  of  Ninth  avenue  to  the  northerly  line  of 
Twenty-first  street;  thence  southeasterly  along  the  northerly  line  of 
Twenty-first  street  to  the  westerly  line  of  Ninth  avenue,  and  thence 
northeasterly  along  the  westerly  line  of  Ninth  avenue  to  southerly  side 
of  Twentieth  street,  and  thence  southeasterly  along  the  southerly  side 
of  Twentieth  street  to  the  westerly  line  of  Tenth  avenue;  thence  south- 


36  Borough  of  Brooklyn.   Char.,  §  1361. 

westerly  along  the  westerly  line  of  Tenth  avenue,  to  the  southerly  side 
of  Twenty-second  streei  as  laid  down  on  the  commissioner's  map  of 
the  city  of  Brooklyn;  thence  southeasterly  along  the  southerly  side  of 
Twenty-second  streei  as  bo  laid  down  to  the  line  separating  the  town  of 
Flatbush  from  the  city  of  Brooklyn;  thence  southwesterly  along  the 
said  division  line  to  the  line  of  the  town  of  New  Utrecht;  thence  along 
the  line  separating  the  city  of  Brooklyn  from  the  town  of  New  Utrecht 
as  the  same  now  runs  to  the  bay  of  New  York :  thence  northeasterly 
along  the  said  bay  and  along  Gowanus  bay  to  the  place  of  beginning. 
Ordinances  of  City  of  Brooklyn,  1892,  vol.  2,  p.  894." 

The  Twenty-second  Ward  of  the  city  of  Brooklyn  shall  comprise  the 
following  district,  namely:  Beginning  at  a  point  where  the  southerly 
boundary  of  the  Plaza  intersects  the  center  line  of  Flatbush  avenue ; 
running  thence  southeasterly  along  the  center  line  of  Flatbush  avenue 
to  the  line  separating  the  town  of  Flatbush  from  the  city  of  Brooklyn: 
thence  along  said  division  line  as  it  now  runs  to  the  southerly  side  of 
Twenty-second  street  as  laid  down  on  the  commissioner's  map  of  the 
city  of  Brooklyn :  thence  westerly  along  said  southerly  side  of  Twenty- 
second  street  as  so  laid  down  to  the  westerly  side  of  Tenth  avenue : 
thence  northeasterly  along  the  westerly  side  of  Tenth  avenue  to  the 
southerly  side  of  Twentieth  street;  thence  northwesterly  along  the 
southerly  side  of  Twentieth  street  to  the  westerly  side  of  Ninth  avenue ; 
thence  southwesterly  along  said  westerly  side  of  Ninth  avenue  to  the 
northerly  line  of  Twenty- first  street;  thence  northwesterly  along  the 
northerly  side  of  Twenty-first  street  one  hundred  feet :  thence  north- 
easterly on  a  line  parallel  with  and  distant  one  hundred  feet  from 
the  westerly  line  of  Ninth  avenue  to  the  southerly  side  of  Twentieth 
street;  thence  northwesterly  along  the  southerly  side  of  Twentieth 
street  to  the  center  line  of  Seventh  avenue ;  thence  southwesterly  along 
the  center  line  of  Seventh  avenue  to  the  center  line  of  Twenty-third 
street ;  thence  northwesterly  along  the  center  line  of  Twenty-third  street 
to  the  center  line  of  Sixth  avenue;  thence  northeasterly  along  the  center 
line  of  Sixth  avenue  to  the  center  line  of  Prospect  avenue;  thence  north- 
westerly along  the  center  line  of  Prospect  avenue  to  the  center  line 
of  the  Gowanus'  bay  or  canal ;  thence  northeasterly  along  said  center 
line  of  said  bay  or  canal  as  the  same  now  runs  to  the  center  line  of 
First  street  as  originally  laid  out  on  the  commissioner's  map  of  the  city 
of  Brooklyn;  thence  southeasterly  along  the  center  line  of  First  street 
as  so  laid  out  to  the  center  line  of  Fourth  avenue;  thence  northeasterly 
along  the  center  line  of  Fourth  avenue  to  the  center  line  of  Union  street ; 
thence  southeasterly  along  the  center  line  of  Union  street  and  a  line 
drawn  in  continuation  thereof  to  a  point  where  said  line  in  continuation 
of  the  center  line  of  Union  street  intersects  a  line  drawn  in  continuation 
of  the  center  line  of  Ninth  avenue;  thence  along  the  line  drawn  in  con- 


Char.,  £  13G2.        Bououuir  of  Queens.  37 

tinuation  of  the  center  line  of  Ninth  avenue  to  the  southerly  boundary 
of  the  Plaza;  thence  easterly  along  the  southerly  boundary  of  the  Plaza 
to  the  place  of  beginning,  including  the  southerly  and  westerly  bound- 
aries of  Prospect  park  as  established  by  law.  Ordinances  of  City  of 
Brooklyn,  1892,  vol  2,  p.  897. 

The  Twenty-ninth  Ward  of  said  city  comprises  all  that  territory 
within  the  limits  of  the  town  of  Flatbush  in  the  county  of  Kings  as  the 
same  was  constituted  on  the  twenty-fifth  day  of  April,  one  thousand 
eight  hundred  and  ninety-four.     Laws  1894,  chap.  356. 

The  Thirtieth  Ward  of  said  city  comprises  all  that  territory  within 
the  limits  of  the  town  of  New  Utrecht  in  the  county  of  Kings  as  the 
same  was  constituted  on  the  third  day  of  May,  one  thousand  eight  hun- 
dred and  ninety-four.     Laws  1S94,  chap.  451. 

The  Thirty-first  Ward  of  said  city  comprises  all  that  territory 
within  the  limits  of  the  town  of  Gravesend  in  the  county  of  Kings  as 
the  same  was  constituted  on  the  third  day  of  May,  one  thousand  eight 
hundred  and  ninety-four.     Laws  1894,  chap.  449. 

The  Thirty-secoxd  Ward  of  said  city  comprises  all  that  territory 
within  the  limits  of  the  town  of  Flatlands  in  the  county  of  Kings  as  the 
same  was  constituted  on  the  vhird  day  of  May,  one  thousand  eight  hun- 
dred and  ninety-four.     Laws  1894,  chap.  450. 

Wards  in  the  borough  of  Brooklyn;  how  designated. —  The  wards  of 
the  former  city  of  Brooklyn  are  hereby  continued,  with  their  present 
boundaries  and  numbers,  and  shall  be  known  and  designated  as  wards 
of  the  borough  of  Brooklyn.    Laws  1901,  chap.  466,  §  1577. 

Borough  of  Queens. 

CHARTER,  §  1362.  In   the    borough    of   Queens 
there  shall  be  three  districts,  as  follows  : 

1.  The  first  district  embraces  ward  one  of  said  bor- 
ough. 

Note  to  Charter  section  1362,  subdivision  1. 

Long  Island  City  constitutes  this  ward.   Laws  1901,  chap.  466,  §  1581. 

2.  The   second   district   embraces   wards   two  and 
three  of  said  borough. 

Note  to  Charter  section  1362,  subdivision  2. 

The  town  of  Newtown  is  ward  two,  and  the  town  of  Flushing  is  ward 
three.     Laws  1901,  chap.  466,  §  1581. 


38  Bokough  <n    Richmond.     Char.,  f  1363. 

3.  The  third  district  embraces  wards  four  and  five 
of  said  borough. 

Note  to  Charter  section  1303,  subdivision  3. 

The  town  of  Jamaica  is  ward  four,  and  that  part  of  the  town  of 
Hempstead  included  within  the  city  of  New  York,  as  constituted  by 
this  act,  shall  be  known  as  ward  five  of  the  said  borough  of  Queens. 
Laws  1901,  chap.  466,  §  1581. 

Borough  of  Richmond. 

CHARTER,  §  1363.  In  the  borough  of  Richmond 
there  shall  be  two  districts,  as  follows  : 

1.  The  first  district  embraces  wards  one  and  three 
of  said  borough. 

Note  to  Charter  section  1363,  subdivision  1. 

The  towns  of  Castleton*  and  Northfield  comprise  this  district.  The 
town  of  Castleton  being  ward  one,  and  the  town  of  Northfield  being 
ward  three.     Laws  1901,  chap.  466,  §  1580. 

2.  The  second  district  embraces  wards  two,  four  and 
five  of  said  borough. 

Note  to  Charter  section  1363,  subdivision  1. 

The  towns  of  Middletown,  Southfield  and  Westfield  comprise  this 
district.  The  town  of  Middletown,  being  ward  two,  the  town  of  South- 
field  being  ward  four,  and  the  town  of  Westfield  being  ward  five. 
Laws  1901,  chap.  466,  §   1580. 


THE 

MUNICIPAL  COURT  ACT  OF  THE  CITY  OF 
NEW  YORK. 


By  Laws  1901,  chap.  218,  "  An  Act  to  provide  for  a  com- 
mission to  revise,  amend,  reform,  simplify,  abridge,  and 
codify  the  laws,  rnles,  practice,  pleadings,  forms,  and  pro- 
ceedings of  the  municipal  court  of  the  city  of  New  York, 
and  the  laws,  rules,  et  cetera,  relating  to  the  clerks,  officers, 
and  attendants  thereof,  and  the  marshals  attached  thereto," 
the  board  of  justices  appointed  seven  of  their  number  a 
commission  to  revise,  amend  and  codify  the  laws  relating 
to  this  court,  with  their  reasons  therefor,  and  transmit  the 
s.ame  to  the  legislature;  this  resulted  in  the  passage  of  the 
following  act,  which,  by  section  365  thereof,  is  to  be  cited 
as  "  The  Municipal  Court  Act  of  the  City  of  New  York." 

Laws  1902,  Chap.  580. 

AN  ACT  in  relation  to  the  municipal  court  of  the  city  of 
New  York,  its  officers  and  marshals. 

Passed  with  the  acceptance  of  the  city.     Became  a  law  April  14,  1902, 
with  the  approval  of  the  Governor.     In  effect  September  1,  1902. 

The  People  of  the  State  of  New  York,  represented  in 
Senate  and  Assembly,  do  enact  as  follows: 

Title       I.  Jurisdiction  and  general  powers.      (§§   1-20.) 
II.  Actions;   summons;  parties.    (§§  25-53.) 
III.  Provisional  remedies.     Action  to  foreclose  a  lien  on  a  chattel. 
(§§  55-142.) 
Article       I.  Order  of  arrest.     (§§   55-70.) 
II.  Attachment.     (§§   73-92.) 
III.  Replevin.     (§§  95-131.) 

IV.  Action    to    foreclose    a    lien    on    a     chattel. 
(§§    137-142.) 
[39] 


40  Jurisdiction  and  General  Powers.  §  1. 

Title    IV.   Pleadings.    (§§  145-147.) 

V.  Proceedings  between  joinder  of  issue  and  trial.    (§§  193-226.) 
Article     I.  Adjournments.       Subpoenas.       Attendance     of 
witnesses.     (§§  193-200.) 
II.  Commissions  and  depositions.    (§§  205-226.) 
VI.  Trial;  trial  jurors.     (§§  230-243.) 
VII.  Judgment    ;•  id  execution.     (§§  248-277.) 
Article     I.  Judgments.     (§§  248-256.) 
II.  Execution.     (§§  260-277.) 
VIII.  Clerks  and  officers.     (§§  282-30G.) 

Article     I.  Clerks  and  officers.     (§§   282-289.) 
II.  Marshals.     (§§  293-306.) 
IX.  Appeals.     (§§   310-327.) 

X.  Costs  and  fees.     (§§  330-356.) 
XI.  Definitions;  effect  of  act;  laws  repealed.     (§§  360-366.) 

TITLE   I. 

Jurisdiction   and  General  Powers. 

Section     1.  Jurisdiction. 

2.  No  jurisdiction  in  certain  cases. 

3.  Removal. 

4.  Contempt  of  court;  criminal. 

5.  Punishment. 

6.  In  view  of  court. 

7.  Pieceding  three  sections  limited. 

8.  Contempts  punishable  civilly. 

9.  Process ;  where  service  may  be  made. 

10.  Justice  to  administer  oaths. 

11.  Eoard   of  justices. 

12.  Board  to  make  rules. 

13.  Court;    by  whom   held. 

14.  Concurrence  of  majority. 

15.  Actions  may  be  continued  before  another  justice. 

16.  Death    or    removal   of  justice  not   to   impair   proceedings, 

et  cetera. 

17.  Court;    where   held. 

18.  Seals. 

19.  Access  to   court-houses. 

20.  Code;   rules  of   supreme  court  applicable;   when. 

Section    1.      Jurisdiction. —  Except   as   provided   in   the 
next  section  the  municipal  court  of  the  city  of  New  York 


§  1.  Jurisdiction  and  General  Powers.  41 

has  jurisdiction  in  the  following  civil  actions  and  proceed- 
ings: 

Notes  to  section  i,  "  Jurisdiction." 

Under  title  I  of  this  act,  "  Jurisdiction  and  General  Powers,"  the 
jurisdiction  and  general  powers  of  the  court  are  specified.  As  will  be 
observed  by  the  preamble  of  section  1  the  court,  and  not  the  judge, 
now  exercises  such  powers  as  are  described  in  subdivisions  15  and  19 
of  section  1.     See  also  note  to  §   1352  of  the  Charter. 

This  section  and  its  nineteen  subdivisions  are  constructed  from  the 
Consolidation  Act  of  1882  (chap.  410),  §  1285,  and  The  Greater  New 
York  Charter    (Laws  1901,  chap.  46G),  §    13G4. 

Amendment  of  a  pleading. —  This  court  may  grant  an  amendment 
of  a  pleading  involving  a  new  cause  of  action  or  defense.  Haivkes  v. 
Burke,  34  Misc.  Rep.  189. 

Appearance  by  attorney. —  Jurisdiction  is  obtained  by  a  general  ap- 
pearance on  behalf  of  defendant  by  an  attorney,  although  he  was  re- 
tained to  appear  only  specially  to  have  service  of  summons  set  aside, 
if  he  had  authority  to  appear  at  all.  Kramer  v.  Gerlach,  28  Misc.  Rep. 
525,  59  N.  Y.  Supp.  855. 

Consent. —  Jurisdiction  cannot  be  acquired  by  consent  of  the  parties 
where,  by  law,  it  is  not  conferred  upon  the  court,  it  being  a  well-es- 
tablished principle  that  consent  cannot  confer  jurisdiction.  In  any  case 
however,  where  the  court  has  jurisdiction  of  the  subject-matter  it  may 
acquire  jurisdiction  of  the  parties  by  their  consent.  Cowen's  Treatise, 
§§   19,  20. 

While  consent  may  waive  error,  it  cannot  confer  jurisdiction.  Da- 
kin  v.  Demming,  6  Paige,  95:  Dudley  v.  Mayhew,  3  N.  Y.  9;  Coffin  v. 
Tracy,  3  Cai.  29;  Germond  v.  The  People,  1  Hill,  343;  Meyer  v.  Burger, 
2  Hoff.  Ch.  1 ;  McNahan  v.  Rauhr,  47  N.  Y.  67. 

Definition. —  Jurisdiction  is  the  power  residing  in  the  court  to  deter- 
mine practically  a  given  action,  controversy,  or  question  presented  to 
it  for  decision.  If  this  power  does  not  exist  with  reference  to  any 
particular  case,  its  determination  by  the  court  is  an  absolute  nullity; 
if  it  does  exist,  the  determination,  however  erroneous  in  fact,  or 
in  law,  is  oinding  upon  the  parties  until  reversed  or  set  aside  in  some 
proceeding  authorized  by  the  practice  brought  for  that  express  pur- 
pose.    Pomeroy  on  Equity  Jurisprudence,  vol.    1,  §   129,  p.   111. 

Jurisdiction  of  the  subject-matter  is  power  to  adjudge  concerning 
the  general  question  involved,  and  is  not  dependent  upon  a  particular 
state  of  facts  which  may  appear  in  a  particular  case,  arising,  or  which 
is  claimed  to  have  arisen,  under  that  general  question,  or  the  ultimate 
existence  of  a  good  cause  of  action  in  the  plaintiff  therein.  Hunt  v. 
Hunt,  72  N.  Y.  217,  228,  230. 


42        Jurisdiction   am»  General   Powers.     S  1,  Subd.  1. 

It  is  the  power  to  act  upon  the  general  or  abstract  question,  and 
to  determine  and  adjudge  whether  the  particular  facts  presented  call 
for  the  exercise  of  the  abstract  power.     Hughes  v.  Cuming,  165  N.'Y.  91. 

Enjoining  action. —  An  action  will  not  be  enjoined  on  the  ground  that 
the  defendant  has  a  counterclaim  upon  a  prior  indebtedness  exceeding 
the  jurisdiction  of  the  court,  where  he  knew,  at  the  time  of  making 
the  contract  sued  Uj»on,  that  it  could  be  enforced  in  such  a  court  and 
that  his  counterclaim  could  not  be  introduced  therein,  and  made  no 
provision  in  the  contract  for  its  payment.  Michael  v.  Kronthal,  13 
Misc.  Rep.   428. 

Estoppel. —  Defendants  answering  upon  the  merits,  and  giving  the 
bond  required  by  section  1306  of  the  city  charter  are  estopped  from 
asserting  that  the  court  has  not  jurisdiction  of  their  persons.  Yogcl  v. 
Banks,  60  App.  Div.  459,  <0  X.  Y.  Supp.  1010. 

How  acquired. —  In  the  case  of  Sangendorf  v.  Schultz%  41  Barb.  102, 
the  general  nature  of  the  jurisdiction  and  the  distinction  between  the 
various  modes  in  which  it  is  obtained  was  considered.  It  was  held 
that  the  jurisdiction  upon  the  commencement  of  an  action  by  sum- 
mons did  not  attach  by  mere  service  of  the  summons,  so  as  to  render 
a  judgment  given  before  the  hour  of  return  valid.  Jurisdiction  is 
obtained  by  the  return  of  the  summons  and  the  arrival  of  the  hour 
at  which  the  court  is  authorized  to  give  judgment. 

Power  of  the  court  limited. — This  court  being  a  court  of  limited 
jurisdiction  can  exercise  only  such  power  as  is  conferred  by  statute, 
and  the  proceedings  must  conform  strictly  thereto.  Loeb  v.  Smith, 
24  Misc.  Rep.  200,  52  N.  Y.  Supp.  677;  Reubenstein  v.  Silberfeld,  24 
Misc.  Rep.  201,  52  N,  Y.  Supp.  703. 

This  court  is  confined  strictly  to  the  authority  given  it.  It  takes 
nothing  by  implication,  but  must  in  every  instance  show  that  the  power 
has  been  expressly  granted.  Loomis  v.  Bowers,  22  How.  Pr.  361;  Ahem 
v.  Nat.  Steamship  Co.,  11  Abb.  N.  S.  362. 

Submission  of  a  controversy  upon  facts  submitted.—  See  §§  241, 
242,  243. 

1.  An  action  to  recover  damages  upon  or  for  breach  of 
contract,  express  or  implied,  other  than  a  promise  to  marry, 
where  the  sum  claimed  does  not  exceed  five  hundred  dollars. 

Notes   to   section    i,   subdivision    i. 

This  subdivision  is  identical  with  subdivision  1  of  section  1364  of 
The  Greater  Xew  York  Charter  of  1897,  as  amended  by  Lawrs  1901, 
chapter  466. 

Account  stated;  implied  assent. —  To  constitute  an  account  stated 
an  express  assent  thereto  need  not  be  shown,  but  such  assent  may  be 


§  1,  Subd.  1.     Jurisdiction  and  General  Powers.        4-'J 

implied  from  the  circumstances.  H  pell-man  v.  Muehlfeld,  106  N.  V. 
245. 

Attorney;  cannot  recover  for  useless  work. —  If  an  attorney-at-law 
does  useless  work,  through  inadvertence  or  inexperience,  he  cannot 
recover  remuneration  therefor,  nor  can  he  recover  if  he  commences  an 
action,  in  which  special  evidence  is  required  by  statute,  without  having 
first  ascertained  the  existence  of  such  evidence.  Leo  v.  Leyser,  30  Misc. 
Rep.  549. 

Liability  of  bailee. —  The  delivery  for  hire,  of  a  team  in  good  condi- 
tion, and  its  return  in  a  damaged  condition  prima  facie  entitles  the 
bailor  to  damages  against  the  bailees,  though  it  was  agreed  that  one 
of  the  bailees  should  drive  the  team.  Rutherford  v.  Krause,  55  App. 
Div.  210.  See  also  Lyons  v.  Thomas,  34  Misc.  Rep.  175,  68  N.  Y.  Supp. 
802;  Isler  v.  Linde,  33  Misc.  Rep.  465,  67  N.  Y.  Supp.  1072. 

Id.;  conversion. —  If  a  bailee  in  innocent  possession  refused  to  inform 
the  owner  whether  he  has  the  chattel,  this  is  an  act  of  conversion. 
Milligan  v.  Brooklyn  W.  &  8.  Co.,  34  Misc.  Rep.  55,  68  N.  Y.  Supp.  744. 

Id.;  negligence. —  A  bailee  on  storage  of  furs  redelivered  in  a  condi- 
tion that  reasonably  imports  lack  of  proper  care,  must  rebut  the  pre- 
sumption of  negligence  arising  therefrom,  though  on  the  whole  evi- 
dence the  bailor  must  make  out  his  ease.  Mayer  v.  (Joe,  31  Misc.  Rep. 
733. 

Id.;  a  restaurant-keeper  is  not  an  insurer  of  the  effects  of  cus- 
tomers, but  is  required  to  use  only  the  ordinary  care  called  for  by  the 
circumstances,  and  cannot  be  charged  for  the  loss  of  an  overcoat  laid 
aside  by  a  customer,  in  the  absence  of  proof  of  an  actual  bailment, 
notice  to  the  restaurant-keeper  or  his  servants  of  the  fact  that  it  was 
laid  aside,  or  proof  of  the  insufficiency  of  the  general  supervision  for 
the  protection  of  the  propery  of  customers.  Montgomery  v.  Ladjing, 
30   Misc.    Rep.    92. 

Broker's  commissions  on  sales  and  loan  of  real  property. —  Broker  or 
agent  must  have  written  authority  of  owner.     Laws  1901,  chap.  128. 

Contract;  authority  of  employee  to  make. —  Plaintiff's  agent  called 
upon  one  of  the  defendants  and  had  a  conversation  with  him  in  re- 
lation to  installing  a  certain  detective  system  in  their  store,  and  was 
referred  by  him  to  one  of  the  employees  of  the  firm,  with  whom  he 
conducted  subsequent  negotiations  and  obtained  a  contract  under  which 
the  work  was  performed.  Held,  that  these  facts  showed  sufficient  au- 
thority in  such  employee  to  make  the  contract.  Morse  v.  Thuroer  et  al., 
7  Misc.  Rep.  707. 

Id.;  breach  of. —  The  contract  of  sale  being  an  entire  one,  refusal  to 
accept  one  installment  of  the  merchandise  is  a  breach  entitling  the 
seller  to  rescind  and  sue  for  damages  on  the  whole  contract.  Gauser 
v.  Weber,  35  Misc.  Rep.  303,  71  N.  Y.   Supp.  773. 

Id.;  effect  of  refusal  to  perform. —  Under  a  contract  of  conditional 
sale  of  a  piano  in  the  form  of  a  lease,  bill  of  sale  to  be  given  on  pay- 


44        Jurisdiction  and  General   Powers.     §  L,  Subd.  1". 

ment  of  the  lasl  installment,  terminable  at  seller's  option  on  default, 
the  seller  may.  upon  the  refusal  of  the  buyer  to  accept  the  piano  when 
tendered,  recover  the  installments  when  they  become  due.  Gray  v. 
Booth.  64  App.  Div.  231,  71   X.  V.  Supp.  1015. 

Id.;  excusinj  performance  is  permitted  where  from  the  nature  of 
the  contract  a  condition  may  be  implied  that  a  party  will  be  relieved 
from  the  consequences  of  nonperformance  in  some  >li<:l)t  particular 
where  the  obligation  is  qualified,  or  where  performance  is  rendered 
impos  3ible  without  his  fault.  Buffalo,  etc.,  Co.  v.  Bellevue,  etc.,  Co., 
165  X.   Y.    247. 

Under  a  contract  for  advertising,  plaintiff  cannot  recover  as  for  per- 
formance by  showing  facts  that  excuse  compliance  with  the  contract. 
Tribune  .l.s-.s/i.  v.  Eisner,  etc.,  34  Misc.  Kep.  658,  70  X.   1".  Supp.  706. 

Id.;  performance. —  A  building  contractor  may  recover  as  for  sub- 
stantial performance,  where  the  work  is  deficient  only  in  unimportant 
details  which  may  be  compensated  for  by  deduction  from  the  contract 
price.  Hall  v.  Long,  34  Misc.  Rep.  1,  68  X.  Y.  Supp.  522:  Vogel  v. 
Friedman,  34  Misc.  Rep.  775,  68  X.  Y.  Supp.  820. 

Conversion  seems  to  consist  in  any  tortious  act  by  which  the  de- 
fendant deprives  the  plaintiff  of  his  goods.  Spencer  v.  Blackman,  9 
Wend.  167;   Laverty  v.  Snethen,  (IS  X.  Y.  522. 

Id.;  agent. —  An  agent  is  liable  for  conversion  when  he  parts  with 
his  principal's  property  in  ah  unauthorized  way.  Larerty  v.  Snethen, 
68  X.  Y.  522. 

Id.;  authority. —  It  is  in  general  sufficient  to  give  a  right  of  action 
to  exercise  authority  over  or  interfere  with  the  property  of  another 
to  his  damage.     Latimer  v.  Wheeler,  1  Keyes,  468;  affd.,  30  Barb.  485. 

Id.;  bailee  who  refuses  to  inform  owner  whether  he  has  the  chattel 
commits  an  act  of  conversion.  Milligan  v.  Brooklyn  W.  &  8.  Co..  .">4 
Misc.  Rep.  55,  58  X.  Y.   Supp.   744. 

Id.;  boarding-house  keeper's  lien;  judgment. —  An  action  to  enforce 
a  boarding-house  keeper's  lien  upon  property  of  a  boarder  which  he  has 
clandestinely  removed  is  one  for  conversion  of  personal  property 
within  the  meaning  of  subdivision  2  of  section  2895  of  the  Code,  and 
the  justice  is  bound  to  insert  in  the  judgment  the  liability  of  the 
defendant  to  arrest  upon  execution.  Babcock  v.  Smith,  47  X.  Y.  St. 
Rep.   118. 

Id.;  carrier. —  A  carrier  who  delivers  goods  to  another  is  liable  for 
conversion  to  a  consignee  who  has  made  advances  on  them.  Bailey  v. 
Hudson  River  R.  R.  Co.,  49  X.  Y.  70. 

Id.;  check. —  An  action  for  conversion  lies  in  favor  of  an  execution 
creditor  for  the  destruction  of  a  check  wdiile  in  the  hands  of  a  con- 
stable to  whom  it  has  been  given  in  payment  of  a  judgment  by  the 
drawer  thereof.     Pawson  v.  Miller,  66  App.  Div.   12. 

Id.;  pledgee. —  A  refusal  by  a  pledgee  to  deliver  np  a  pledge  on 
tender  of  the  debt  and  interest  h  a  conversion  of  the  pledge.     Case  v. 


§  1,  Subd.  1.     Jurisdiction  and  General  Powers.        45 

Higenbotam,  100  N.  Y.  248,  revg.  27  Hun,  406.  So  is  a  sale  of  stock 
by  the  pledgee  after  tender  of  the  debt  and  without  authority.  Hope  v. 
Lawrence,  1  Hun,  317. 

Id.;  stolen  horse. —  One  who  innocently  purchases  a  stolen  horse  is 
liable  to  the  owner  for  conversion.  Bates  v.  Riordan,  21  Week.  Dig. 
134. 

Id.;  value. —  In  an  action  for  conversion,  proof  of  what  plaintiff  had 
paid  for  the  article  alleged  to  have  been  converted  is  no  proof  of  its 
value,  upon  which  plaintiff  can  recover  more  than  nominal  damages. 
Whitmark  v.  Lorton,  15  Daly,  548;  s.  c,  29  N.  Y.  St.  Rep.  322,  8  N.  Y. 
Supp.  480. 

Damages,  measure  of. —  In  an  action  to  recover  damages  for  a  breach 
of  a  contract  by  which  the  plaintiffs  agreed  to  manufacture  and  sell 
to  the  defendant  a  quantity  of  garments,  which  breach  grew  out  of  the 
defendant's  refusal  to  accept  the  garments,  the  measure  of  damages 
is  the  difference  between  the  contract  price  and  the  actual  cost  of  manu- 
facturing and  delivering  the  goods.  In  such  a  case  the  plaintiffs  can 
recover  only  tne  lowest  sum  which  they  would  have  received  as  profit 
if  the  contract  had  been  fulfilled  in  any  form  which  answered  its  terms. 
Dryfoos  v.  Uhl,  69  App.  Div.   118. 

Decedent's  debts. —  As  to  whether  this  court  has  jurisdiction  of  an 
action  to  charge  the  next  of  kin  of  a  decedent  with  his  debts,  brought 
under  the  Code  of  Civil  Procedure,  §  1837,  qucere?  tiiegel  v.  Cohen, 
23  Misc.  Rep.  365;  s.  c,  51  N.  Y.  Supp.  318. 

Goods  manufactured  according  to  specifications  and  sale  by  sample. 
— A  sale  by  sample  cannot  be  based  upon  the  mere  fact  that  the  vendee 
selected  a  certain  type  or  style  of  goods  from  various  grades  exhibited 
to  him  without  any  distinct  stipulation  that  the  goods  to  be  delivered 
were  to  correspond  with  any  designated  sample,  especially  where  he 
orders  them  manufactured  according  to  specifications  furnished  by 
him  and  which  call  for  an  article  different  in  many  particulars  from 
any  exhibited  to  him,  and  therefore  in  such  a  ease  no  warranty  can 
be  implied  which  will  survive  delivery  and  acceptance.  Smith  v.  Coe, 
170  N.  Y.  162. 

Infant;  right  of,  to  bring  action. —  Where  an  infant  has  a  right  of 
action  he  is  entitled  to  maintain  an  action  thereon ;  and  the  same 
should  not  be  delayed  on  account  of  his  infancy.  Code  Civ.  Proc, 
%  468,  made  applicable  by  §  3347,  subd.  3,  of  said  Code. 

Id.;  necessaries. —  The  obligation  of  an  infant  to  pay  for  necessaries 
furnished  to  him  is  not  greater  than  the  obligation  of  his  father  in 
respect  thereto;  they  must  be  strictly  necessaries,  and  in  substance  are 
limited  to  such  articles  as  are  requisite  for  the  body  or  for  the  proper 
cultivation  of  the  mind. 

The  infant  cannot  be  charged  with  more  than  the  fair  value  of  the 
necessaries  furnished,  even  though  he  contracted  to  pay  more. 


46        Jurisdiction  and  General  Powees.     >}  1,  Sued.  1. 

Theater  tickets  are  not  necessaries  for  an  infant  attending  college. 

An  infant  is  not  liable  for  borrowed  money  unless  it  is  shown  that 
it  was  applied  to  his  personal  use  for  some  necessity.  Gray  v.  Sands, 
66  App.  Div.  572. 

Id.;  physician. —  A  physician  called  by  a  mother  to  attend  her  infant 
child  is  not  ehargeabb  with  constructive  notice  of  the  fact  that  the 
father  and  mother  of  the  child  do  not  live  together,  and  the  father 
is  responsible  to  the  physician  for  the  value  of  the  services  thus 
rendered.     Dixon  v.  Chapman,  56  App.  Div.   542. 

Id.;  wages  of. —  Parent  or  guardian  who  claims  wages  of  minor 
must  notify  employer  within  thirty  days  after  commencement  of  ser- 
vice, in  default  of  which  notice  payment  to  the  minor  is  valid.  Laws 
1850,  p.  579,  chap.  266;  24  Barb.  634. 

Notification,  effect  of. —  McClurg  v.  McKercher,  56  Hun,  305.  Effect 
of  failure  to  notify  employer.  Watson  v.  Kemp,  42  App.  Div.  372. 
See  also  Domestic  Relations  Law    (1896,  chap.  272).   §   42. 

Installments  on  conditional  sales;  hiring,  etc. —  By  section  139  of 
this  act  an  action  may  be  maintained  to  recover  a  sum  or  sums  due  and 
payable  for  installment,  payment,  or  hiring. 

Married  woman's  necessaries;  abandonment. — Where  the  wife  leaves 
the  husband  without  justification,  he  cannot  be  charged  with  her  sup- 
port. Catlin  v.  Martin,  69  N.  Y.  393.  What  constitutes  justification. 
See  Sykes  v.  Halstead,  1  Sandf.  483;  Blomers  v.  Sturtevant,  4  Den.  46. 

Id.;  agency. —  A  complaint  in  an  action  to  recover  for  necessaries 
furnished  to  a  wife  is  sufficient  if  it  contains  allegations  which,  if  al- 
leged in  a  declaration  at  common  law,  would  have  a  cause  of  action 
for  goods  furnished.  The  fact  that  it  also  alleges,  in  a  case  where  the 
defendant  and  his  wife  were  living  separate  and  apart  from  each  other, 
that  the  purchase  was  made  by  her  as  his  agent,  will  not  preclude  a  re- 
covery without  proof  of  an  express  agency,  and  the  exclusion  of  evi- 
dence tending  to  show  that  the  articles  furnished  were  necessaries  for 
the  wife  and  children,  on  the  ground  that  it  tended  to  prove  a  different 
cause  of  action,  is  reversible  error.  Hatch  v.  Leonard,  165  N.  Y.  435, 
revg.,  38  App.  Div.   128. 

Id.;  credit  of  the  husband. —  It  must  be  shown  that  the  necessaries 
were  furnished  on  the  credit  of  the  husband.  Errick  v.  Bueki,  7  Misc. 
Rep.    118. 

A  husband  who  abandons  his  wife  and  neglects  to  support  her  is 
liable  for  moneys  loaned  to  the  wife  on  his  credit,  where  it  appears 
that  such  moneys  were  used  by  the  wife  in  the  purchase  of  necessaries. 
Kenny  v.  Meislahn,  69  App.  Div.  572. 

Id.;  counsel  fee;  liability  of  husband  for  services  of  attorney. —  The 
reasonable  value  of  the  services  of  an  attorney  rendered  in  preparing 
papers  in  a  suit  for  separation  by  a  wife  against  her  husband,  neces- 
sary to  be  brought  for  her  protection  while  she  was  living  with  him, 


§  1,  SUBD.  1.        JURISDICTION    AND    GENERAL    POWERS.  47 

but  which  papers  were  never  served,  the  parties  having  become  recon- 
ciled, may  be  recovered  from  the  husband  upon  the  ground  of  his  wife's 
implied  agency  to  bind  him  for  necessaries.  Langbein  v.  Schneider,  27 
Abb.  N.  C.  228.  The  lamented  Austin  Abbott  in  a  note  to  this  case 
says:  "The  importance  of  this  question,  and  the  absence  of  control- 
ling authority  in  this  State,  leads  me  to  present  the  argument  of  counsel 
with  unusual  fullness."     See  also  Naumer  v.  Grey,  28   App.  Div.  529. 

Id.;  Domestic  Relations  Law  as  to  "  Certain  rights  and  liabilities  of 
husband  and  wife"  is  to  be  found  in  Laws  1896,  chap.  272,  §§  20-29, 
p.  219. 

Id.;  separate  maintenance. —  If  the  husband  provides  for  his  wife's 
separate  maintenance,  it  will  relieve  him  of  his  liability.  Baker  v. 
Barney,  8  Johns.  72 ;  Fenner  v.  Lewis,  10  Johns.  38 ;  Raymond  v. 
Condrey,  19  Misc.  Rep.  34. 

In  an  action  to  recover  for  necessaries  furnished  by  the  plaintiff 
to  the  defendant's  wife  in  which  evidence  is  given  tending  to  show  that, 
at  the  time  the  necessaries  were  furnished,  the  defendant  was  living 
apart  from  his  wife  and  that  he  had  made  an  adequate  allowance  for 
her  maintenance  and  support,  it  is  error  for  the  court  to  charge  that 
the  plaintiff  can  recover  if  the  jury  find  that  he  did  not  know  or  have 
cause  to  know  that  the  husband  and  wife  were  living  apart  and  that 
the  latter  was  supplied  with  a  suitable  allowance.  Hatch  v.  Leonard, 
71   App.   Div.   32. 

Money  deposited;  accounting. —  This  court  has  jurisdiction  of  an 
action  to  recover  money  deposited  with  defendant  by  plaintiff  as  an 
assurance  that  an  agreement  for  a  partnership  would  be  executed  within 
a  time  specified  and  not  requiring  an  accounting.  Lamport  v.  Ravid, 
33  Misc.  Rep.  115,  67  N.  Y.  Supp.  82. 

Money  had  and  received;  accounting. —  This  court  has  jurisdiction  of 
an  action  for  money  had  and  received  to  the  use  of  plaintiff,  though  it 
was  paid  by  another  to  defendant  in  violation  of  plaintiff's  rights,  the 
amount  being  fixed  and  less  than  $500,  and  no  accounting  required  or 
equity  to  be  determined.  Dechen  v.  Dechen,  59  App.  Div.  166,  68  N.  Y. 
Supp.   1043. 

Partnership. —  Where  the  defendant,  in  an  action  for  money  had  and 
received,  admits  that  he  received  and  holds  for  the  use  of  the  plaintiff 
a  specified  sum,  the  fact  that  such  fund  arose  out  of  a  partnership 
transaction  is  immaterial,  and  does  not  deprive  this  court  of  jurisdic- 
tion of  the  action.     Eckert  v.  Clark,  16  Misc.  Rep.  67. 

Promissory  notes;  action  upon  lost  negotiable  paper, —  See  Code  Civ. 
Proc.,  §  1917.  In  an  action  upon  negotiable  paper,  which  has  been 
lost,  the  giving  of  a  bond  under  the  statute,  with  sufficient  sureties, 
conditioned  to  indemnify  the  defendant  against  all  claims  by  any  other 
person  on  account  thereof,  is  an  essential  prerequisite  to  any  recovery 
thereon.     Desmond  v.  Rice,  1  Hilt.  530.     See  also  §  240. 


48        Jurisdiction   and  General   Powers.     §  1,  Subd.  2. 

Id.;  accommodation  note;  usury. —  A  promissory  note,  made  for  the 
accommodation  of  the  payee,  and  transferred  by  him  before  maturity 
to  a  third  person  at  i  discount  which  made  the  interest  reserved  fortj 
per  cent,  per  annum,  is  not  enforceable  by  the  transferee  against  the 
accommodation  maker.  Want  of  knowledge  on  the  part  of  the  trans- 
feree that  the  note  was  accommodation  paper  and  had  no  inception 
until  it  passed  into  his  hands  is  immaterial.  The  Negotiable  Instru- 
ments Law  (Laws  1897,  chap.  012)  lias  not  altered  the  rule.  ,SI rick- 
land  v.   Henry,   00  App.  Div.   23. 

Rent  due  on  a  holiday,  other  than  Sunday,  is  payable  on  that  day. 
Walton  v.  Stafford,  162  N.  Y.  558. 

Statute  of  frauds. —  An  oral  contract  of  employment  not  by  its  terms 
to  extend  beyond  one  year,  nor  for  any  definite  time,  is  not  void. 
Rochester,  etc.,  R.  Co.  v.  Browne,  55  App.  Div.  444,  66  N.  Y.  Supp.  867. 

Terms  of  contract.- —  Plaintiff  sued  upon  a  written  contract  for  the 
payment  to  it  of  a  specified  sum  monthly,  for  advertising  defendant's 
business  in  the  street  cars  of  a  certain  city,  demanding  the  amount 
due  for  one  month.  Defendant  interposed  a  general  denial  coupled 
with  an  admission  of  the  execution  of  the  contract,  but  the  litigation 
concerned  the  terms  thereof,  and  a  less  sum  than  that  specified  was 
recovered.  Held,  that  the  recovery  should  be  sustained  against  the 
objection  that  the  court  had  exercised  equity  powers  in  reforming  the 
contract,  the  evidence  supporting  the  judgment  rendered.  Railway 
Advertising  Co.  v.  Standard  Rock  Candy  Co.,  29  Misc.  Rep.  115,  60 
N.  Y.  Supp.  265. 

Title. —  An  action  by  the  purchaser  for  damages  for  a  vendor's  breach 
of  contract  to  convey  a  good  title  is  writhin  the  jurisdiction  of  this 
court,  not  being  a  cause  in  equity.  Katz  v.  Henig,  32  Misc.  Rep.  672, 
66  N.  Y.  Supp.  530. 

Waiver  of  amount  in  excess  of  jurisdiction. —  A  recovery  in  excess 
of  the  jurisdiction  may  be  waived  and  a  recovery  had  up  to  that 
amount.     Globe  v.  Ranch,  21   Misc.   Rep.  48. 


2.  An  action  upon  a  bond  conditioned  for  the  payment  of 
money  where  the  sum  claimed  to  be  due  does  not  exceed 
five  hundred  dollars,  the  judgment  to  be  rendered  for  the 
sum  actually  due.  Where  the  sum  secured  by  the  bond  is  to 
be  paid  in  installments,  an  action  may  be  brought  for  each 
installment  as  it  becomes  due. 

Notes  to  section  i,  subdivision  2. 

This  subdivision  is  the  same  as  former  subdivision  4  of  section  1364 
of  the  Charter  of   1897,   as  amended   in    1901,   and  was  formerly  sub- 


§  1,  Sued.  3.     Jurisdiction  and  General  Powers.        49 

division  2  of  section  1285  of  the  Consolidation  Act  (Laws  1882,  chap. 
410). 

Subdivisions  3,  4,  and  5  of  section  1304  of  this  act  are  all  provisions 
for  actions  on  bonds  or  undertakings. 

See  under  subd.   3  for  notes   upon  undertakings  and  bonds. 


3.  An  action  upon  a  surety  bond  or  undertaking  taken  in 
any  court  where  the  amount  claimed  in  the  summons  does 
not  exceed  the  sum  of  five  hundred  dollars. 

Notes  to  section  i,   subdivision  3. 

This  subdivision  is  taken  from  subdivision  5  of  the  Charter  of  1897, 
as  amended  in  1901,  and  was  formerly  subdivisions  4  and  12  of  section 
1285  of  the  Consolidation  Act    (Laws   1882,  chap.   410). 

Action  on  undertaking  when  maintainable  against  sureties  in  an  un- 
dertaking given  on  behalf  of  the  defendant  to  procure  a  return  of  the 
chattel,  or  against  the  bail  of  a  defendant  who  has  been  arrested.  See 
§   126,  and  notes. 

Amendment  of  undertaking  can  only  be  had  with  consent  of  the 
sureties.  Lane/ley  v.  Warren,  1  N.  Y.  606;  s.  c,  3  How.  Pr.  363,  1 
Code  Rep.  Ill:  Wilson  v.  Allen,  3  How.  Pr.  369.  Consult  however 
Wood  v.  Kelly,  2  Hilt.  334;  Irwin  v.  Muir,  13  How  Pr.  409;  s.  c,  4 
Abb.  Pr.   133.     See  Robinson  v.  Moron,  23  Week.  Dig.  326. 

Appearance,  bond  for,  given  with  sureties  for  appearance  at  court,  to 
abide  the  order  of  the  court,  where  the  person  has  been  adjudged  guilty 
of  the  misconduct  alleged,  and  punishment  by  fine  and  imprisonment 
ordered,  cannot  be  prosecuted  at  the  same  time  that  a  warrant  of  com- 
mitment is  issued  against  the  party.  The  statute  does  not  give  the 
aggrieved  party  two  final  and  complete  remedies  for  the  same  offense. 
Barton  v.  Stiffs,  32  How.  Pr.  456. 

Arrest  and  imprisonment. —  The  arrest  and  imprisonment  of  a  judg- 
ment debtor  upon  an  execution  against  his  body  is  in  law  a  satisfaction 
of  the  judgment  so  long  as  the  imprisonment  continues,  and  during  that 
period  no  action  can  be  maintained  by  the  judgment  creditor  against  one 
standing  as  surety  for  the  debtor,  or  to  enforce  collateral  securities 
held  for  the  payment  of  the  judgment.  Plaintiff  commenced  an  action. 
B.  made  application  to  have  the  cause  removed,  giving  the  bond  required 
by  the  statute  (chap.  344,  Laws  1857),  conditioned  for  the  payment 
of  any  judgment  recovered  against  him.  Plaintiff  recovered  judgment. 
In  an  action  against  the  sureties  upon  the  bond,  defendants  showed 
that  B.  was  taken  in  execution  upon  the  judgment.  Held,  that  while 
B.'s  imprisonment  continued  the  bond  could  not  be  enforced  either 
against  him  or  his  sureties;  that  as  it  did  not  appear  that  he  had  been 

4 


50        Jurisdiction   and  General   Powers.     §  1,  Subd.  3. 

discharged,  the  presumption  was  his  imprisonment  did  continue;  and 
that  the  plaintiff  could  not  maintain  his  action.  Koenig  v.  Steckel,  58. 
N.  Y.  475. 

Attachment. —  The  liability  of  the  sureties  on  an  undertaking  given 
on  obtaining  an  attachment  is  not  affected  by  the  fact  that  after  the 
attachment  was  vacated  it  was  reinstated,  the  order  of  reinstatement 
having  afterward  been  itself  vacated.  Epstein  v.  V.  8.  Fidelity  & 
Guaranty  Co.,  29  Misc.  Rep.  295,  revg.  28  Misc.  Rep.  440. 

Where  a  motion  to  vacate  an  attachment,  although  at  first  success- 
ful, is  denied  on  appeal  but  not  apparently  on  the  merits,  and  the 
action  is  thereafter  tried  and  results  in  a  judgment  dismissing  the 
complaint,  the  surety  upon  the  undertaking  given  to  secure  the  attach- 
ment is  liable  for  the  costs  and  expenses  of  the  proceedings  to  vacate 
the  attachment  as  well  as  for  the  costs  and  expenses  of  defending  the 
action.     Tyng  v.  American  Surety   Co.,  69   App.   Div.   137. 

Cause  of  action. —  The  sureties  are  only  liable  for  the  cause  of  action 
for  which  they  gave  an  undertaking,  so  that  if  a  replevin  action  fails 
and  the  complaint  is  amended,  so  as  to  set  up  an  equitable  lien  upon 
which  a  recovery  is  had,  the  court  is  justified  in  the  judgment  in 
barring  the  remedy  of  the  defendant  upon  the  replevin  bond.  National 
Bank.  etc.  v.  Rogers.  166  N.  Y.  360,  affg.  44  App.  Div.  357. 

In  an  action  against  sureties,  in  replevin,  they  are  bound  only  accord- 
ing to  the  terms  of  their  undertaking,  and  when  defendant  has  not  de- 
manded in  his  answer  a  judgment  of  return  of  the  property,  he  could 
not  have  a  judgment  awarding  to  him  possession  of  the  property;  such 
a  demand  in  the  answer  is  necessary  to  give  the  justice  jurisdiction  to 
render  such  a  judgment.  Brown  v.  Weppner,  62  Hun,  581;  Salisbury 
V.  Stinson,  10  Hun,  242;  Frost  v.  Kopp,  13  Civ.  Pro.  Rep.  377. 

Discontinuance  of  action. —  Plaintiff  in  replevin  gave  the  usual  un- 
dertaking. On  the  day  fixed  for  trial  he  withdrew  the  action,  defendant 
protesting,  and  a  judgment  of  discontinuance  was  entered.  In  an 
action  on  the  undertaking,  held,  that  such  withdrawal  wTas  a  breach 
of  the  undertaking,  and  that  plaintiff  in  this  action  was  entitled  to 
recover.     Tyler  v.   Miller,  8  Week.  Dig.  290. 

Escape. —  The  action  against  sureties  upon  an  undertaking  for  the 
jail  limits  must  be  begun  by  the  service  of  the  summons  while  the 
debtor  is  beyond  the  jail  limits.  The  sureties  are  liable  for  the  amount 
of  the  debt  for  which  the  debtor  was  committed,  although  the  debtor 
is  insolvent.  Flynn  v.  Union  Surety  &  Guaranty  Co.,  61  App.  Div. 
170,  70  N.  Y.  Supp.  403. 

Estoppel. — By  giving  the  undertaking,  the  defendant  is  estopped 
from  contradicting  the  facts  recited  and  contained  in  it.  Haggard  v. 
Morgan,  4  Sandf.  198.  5  N.  Y.  422;  Pendleton  v.  Franklin.  3  Sandf. 
572;  Decker  v.  Judson,  16  N.  Y.  439;  Coleman  v.  Bean,  3  Keyes,  94, 
1  Abb.  App.  Dec.  394. 


§  1,  Subd.  3.     Jurisdiction   and  General   Powers.        51 

The  parties  in  a  claim  and  delivery  action  may  waive  the  formali- 
ties of  the  statutory  proceedings,  and  in  such  case  the  sureties  to  the 
undertaking  are  bound  by  the  waiver  and  are  estopped  from  question- 
ing the  recitals  in  the  undertaking,  and  this  although  they  had  no 
knowledge  of  the  facts  that  the  proceedings  were  not  to  be  taken  and 
the  undertaking  used  in  the  manner  prescribed  by  the  statute.  Harri- 
son v.  Wilkins,  69  N.  Y.  412. 

Where  the  defendant  in  a  claim  and  delivery  action,  in  which  the 
plaintiff  claims  immediate  delivery,  after  the  sheriff  has  taken  posses- 
sion of  the  property,  gives  an  undertaking  pursuant  to  the  Code,  and 
upon  the  undertaking  obtains  delivery  and  retains  the  property,  he  is 
estopped  thereby  from  denying  that  he  had  possession  of  the  property 
at  the  time  of  the  commencement  of  the  action.  Diossy  v.  Morgan,  74 
N.  Y.  11. 

Evidence  to  impeach  undertaking. —  In  an  action  on  an  undertaking 
it  is  error  to  exclude  evidence  that  the  order  in  pursuance  of  which  it 
was  given  was  void,  for  want  of  jurisdiction,  by  reason  of  the  absence 
of  one  of  the  magistrates  who  should  have  taken  part  in  the  proceed- 
ings. People  ex  rel.  Commissioners  of  Public  Charities  and  Correction 
of  the  City  of  A  etc  York  v.  Dando,  20  Abb.  N.  C.  245. 

Execution  must  have  been  issued  and  returned  unsatisfied. —  Where 
in  an  action  of  replevin  the  plaintiff  recovers  a  judgment  for  the  pos- 
session of  the  property  with  damages  for  its  detention,  and  for  a  fixed 
sum  in  case  a  return  cannot  be  had,  he  cannot  maintain  an  action 
against  the  sureties  to  an  undertaking,  given  by  the  defendant,  until 
an  execution  has  been  issued  to  the  sheriff  in  pursuance  of  the  judg- 
ment and  the  same  has  been  returned  duly  unsatisfied.  Hagcr  v.  Clute, 
10  Hun,  447. 

Executor  must  sue  in  his  representative  capacity,  and  although  an 
amendment  from  an  individual  to  a  representative  capacity  is  allowed 
in  the  affidavit,  the  undertaking  given  citing  him  as  an  individual 
as  claimant.  Held,  that  judgment  for  the  plaintiff  could  not  be  sus- 
tained.    Taylor  v.  .Jackson,  35  Misc.  Rep.  300,  71  N.  Y.  Supp.  745. 

Exempt  property  under  execution;  seizure  of. —  The  sureties  upon  the 
official  bond  of  a  constable,  who,  under  an  execution  against  a  house- 
holder, seizes  a  stove,  sewing  machine,  linen,  and  wearing  apparel,  and 
other  personal  property,  the  value  of  which  amounted  to  less  than 
$50,  and  which  comprises  all  the  household  furniture  belonging  to 
the  householder,  and  was  therefore  wholly  exempt,  are  liable  to  the 
householder  for  the  value  of  the  property,  notwithstanding  the  fact  that 
the  latter  did  not  forbid  the  sale. 

The  fact  that  the  execution,  under  which  the  levy  was  made,  was 
issued  upon  a  judgment  against  the  householder,  obtained  in  part  for 
exempt  personal  property,  does  not  relieve  the  sureties  from  liabilities. 

The  official  bond  of  the  constable  covers  his  illegal   acts,   and  it  is 


52        Jurisdiction  and  General  Powers.     §  1,  Stjbd.  3. 

not  necessary  to  sue  the  constable  first  in  order  to  enforce  the  lia- 
bility of  the  sureties  thereon.     Orieb  v.  Northrup,  66  App.  Div.  86. 

Exception  to  and  justification  of  sureties. —  By  section  70  of  this  act 
sections  106  to  110  and  sections  127  and  128,  relating  to  undertakings, 
sureties,  and  justification,  are  made  applicable. 

Fraud  in  making  assignment. —  This  courl  bas  jurisdiction,  in  an 
action  upon  a  bond  given  by  a  claimant  of  attached  property,  to  try 
the  question  of  fraud  in  the  making  of  an  assignment  for  the  benefit 
of  creditors  under  which  the  claimant  claimed  title  to  the  property,  as 
no  affirmative  relief  on  that  ground  is  asked.  Malkemesius  v.  Pauly 
<  '  .'/..   17   Misc.  Rep.  371. 

Insurance  agent. —  What,  modification  of  the  contract  between  the 
company  and  its  agent  discharges  the  surety.  American  Casualty  Ins. 
Co.  v.   Green,  70  App.  Div.  207. 

Joint  and  several  liability. —  Although  the  sureties  did  not  execute 
an  undertaking  providing  that  they  were  jointly  and  severally  liable, 
a  defense  that  the  undertaking  was  not  executed  by  them  "  pursuant 
to  the  statute  in  such  case  made  and  provided  "  was  held  of  no  avail 
to  them,  that  the  provision  was  for  the  benefit  of  the  obligee,  and  if 
he  choose  to  accept  it  in  the  form  it  was  given  in,  and  it  was  not  shown 
that  the  principal  did  not  have  the  full  benefit  of  the  stay,  the  defense 
was  not  valid.  Denikc  v.  Denike.  01  App.  Div.  492,  70  X.  Y.  Supp. 
629. 

Liability  of  sureties. —  See  notes  to  §  315. 

Marshal's  return  is  presumptive  evidence  against  surety. —  See  §§  i27 
and  271,  subd.  3. 

Mechanic's  lien  bond. — Sureties  on  a  mechanic's  lien  bond  may  defend 
themselves  and  their  principals  in  an  action  brought  to  foreclose  it, 
in  which  action  the  judgment  demanded  is  in  form  againsf  the  prop- 
erty represented  by  the  bond,  and  therein  may  set  up  any  legal  or  equi- 
table defense  which  would  have  availed  the  principals  and  are  not  pre- 
cluded from  contesting  an  unjust,  false,  and  exaggerated  claim,  by  the 
default  of  the  principals  in  failing  to  defend  it.  JEschlimann  v.  Pres- 
byterian  Hospital,  165  N.  Y.  296. 

Mistakes,  omissions,  defects,  and  irregularities,  and  general  regula- 
tions respecting  bonds  and  undertakings. —  Sections  728,  729,  730,  and 
810  to  816  inclusive,  of  the  Code  of  Civil  Procedure  apply  to  this 
court  by  subdivision  6  of  section  3347. 

Order  of  arrest. —  Right  of  action  on  the  undertaking  where  the  order 
has  been  vacated.  Measure  of  damages.  Payments  by  the  principal 
obligor.     Kraiisc  v.  Rutherford,  37  Misc.  Rep.  382. 

The  undertaking  given  on  obtaining  an  order  of  arrest,  provided  that 
if  defendant  "  recover  judgment  herein,  or  if  it  is  finally  decided  that 
plaintiff  was  not  entitled  to  the  order  oi  arrest,  plaintiff  will  pay  all 
costs  which  may  be  awarded  to  defendants,  and  all  damages  which  they, 


§  1,  Subd.  3.     Jurisdiction  and  General  Powers.        53 

or  either  of  them,  may  sustain  by  reason  of  the  arrest,  not  exceeding 
the  sum  of  $250."  Held,  that  a  defendant,  on  procuring  an  order  vacat- 
ing the  order  for  his  arrest  on  the  papers  on  which  it  was  granted, 
was  entitled  to  maintain  an  action  on  the  undertaking,  without  waiting 
to  obtain  judgment  in  the  action.  Krause  v.  Rutherford,  45  App.  Div. 
132. 

Held  also,  that  defendant  was  not  required  to  obtain  leave  of  the 
court  before  bringing  the  action,  the  provisions  of  Code  Civ.  Proc, 
§  814,  applying  to  undertakings  given  to  the  people  or  to  public  officers. 

Held  also,  that  he  was  entitled  to  recover  counsel  fees  and  expenses 
in  moving  to  vacate  the  order  of  arrest  up  to  the  time  of  the  commence- 
ment of  the  action  and  lor  loss  of  his  time  during  his  imprisonment, 
but  not  the  whole  $250,  unless  he  showed  damages  to  that  amount. 

Held  also,  that  it  was  error  to  charge  that  the  suffering  he  endured 
from  his  imprisonment,  of  either  body  or  mind,  was  a  proper  element 
to  be  considered,  and  to  refuse  to  charge,  "  The  jury  cannot  award  any 
damages  because  of  any  disgrace  which  has  attended,"  the  rule  being 
different  from  that  obtaining  in  an  action  for  false  imprisonment. 

Removal. —  The  defendant  is  not  bound  to  exhaust  his  remedies 
against  the  judgment  debtor  before  bringing  suit  on  the  undertaking. 
Johnson   v.  Aekerson,  3  Daly,  430. 

Replevin. —  Failure  of  the  defendant,  successful  in  a  replevin  suit,  to 
serve  on  the  plaintiff  a  notice  to  return  the  property,  as  required  by 
Code  Civ.  Proc,  §  1725,  is  not  a  defect  available  to  the  sureties  sued 
on  the  undertaking.     Christiansen  v.  Mendham,  45  App.  Div.  554. 

Where  the  chattel  replevied  was  not  returned  and  the  action  was 
discontinued,  the  extent  of  the  liability  of  the  sureties  upon  an  under- 
taking therefor  is  the  value  of  the  property  replevied  and  not  the 
penalty  specified.     Pet  tit  v.  Allen,  64  App.  Div.  579,  72  N.  Y.  Supp.  287. 

To  establish  such  liability,  it  is  necessary  to  prove  that  the  plaintiff 
in  replevin  took  possession  of  the  chattel  by  virtue  of  his  writ,  the 
undertaking  containing  no  such  recital  of  possession  as  in  the  case  of 
defendant's  undertaking  for  the  return  of  the  property  after  it  was 
taken  from  him.     PettU  v.  Allen,  04  App.  Div.  579,  72  X.  Y.  Supp.  287. 

Title  to  real  property  in  question. —  The  sureties  upon  the  undertak- 
ing given  in  such  case  may  be  sued  in  this  court  as  provided  in  section 
2,  subdivision   1.     And  see  §   180. 

Undertaking  synonymous  with  bond. —  An  undertaking  being  merely 
a  simplified  bond  without  seal,  the  equity  of  the  statute  giving  a  remedy 
upon  the  bonds,  is  applicable  to  undertakings.  People  ex  rel.  Commis- 
sioners of  Public  Charities  and  Correction  of  the  City  of  New  York  v. 
Dando,  20  Abb.  X.  ('.  245. 

See  as  to  the  difference  between  bonds  and  undertakings  and  the  right 
of  action  upon  them.  1  Abb.  X.  S.  61,  4(14,  405,  where  the  cases  are 
collected.     See  also  Lutes  v.  Shelley,  40  Hun,   197. 


54        Jurisdiction   and  General   Powers.      §  L,  Subd.  4. 

Vessels. —  An  undertaking  given  to  enforce  a  lien  on  a  vessel  may  be 
prosecuted  in  this  court,     (ode  Civ.  Proc.,  §  3438. 

4.  An  action  in  behalf  of  the  people  of  the  state  or  of  the 
city  of  New  York,  brought  by  the  direction  of  a  commis- 
sioner of  public  charities  or  an  overseer  of  the  poor  upon  a 
bastardy  or  abandonment  bond  in  a  case  where  it  is  pre- 
scribed by  law  that  such  an  action  can  be  maintained. 

Notes  to  section   i,  subdivision  4. 

This  subdivision  is  taken  from  subdivision  8  of  section  1285  of  the 
Consolidation  Act  (Laws  1882,  chap.  410),  the  Charter  of  181)7,  as 
amended  in  1901,  and  subdivision  3  of  section  3215  of  the  Code  of  Civil 
Procedure.  The  amendment  consists  in  omitting  at  the  end  thereof 
the  words,  "  in  said  Municipal  Court  of  the  city  of  Xew  York,  or  in 
any  court  not  being  a  court  otf  record.'' 

Section  178  provides  for,  "  Pleadings  in  actions  on  bastardy  bonds." 
and  section  339  provides  for  "  Costs  in  action  upon  bastardy,  et  cetera, 
bonds." 

Has  jurisdiction  been  conferred  in  an  action  upon  a  bastardy  or 
abandonment  bond  by  this  subdivision?  —  It  is  doubtful  whether  such 
jurisdiction  has  been  given  as  it  seems  was  sought  to  be  done  by  the 
provisions  of  this  subdivision.  There  is  no  "  case  where  it  is  prescribed 
by  law  that  such  an  action  can  be  maintained.''  The  subdivision  itself 
does  not  give  the  jurisdiction  except  in  a  case  where  it  is  prescribed  by 
law  that  such  an  action  can  be  maintained;  but  where  is  the  case,  and 
where  is  the  law  where  it  is  prescribed  that  such  an  action  can  be 
maintained?  Originally  the  District  Courts  had  jurisdiction  of  such 
actions,  the  same  being  conferred  by  Laws  1862,  chapter  389,  section  1, 
which  was  repealed  by  Laws  1880,  chapter  245.  and  Laws  1881,  chapter 
537,  but  no  enactment  has  since  been  made  prescribing  that  such  an 
action  can  be  maintained  in  this  court.  The  former  subdivision  8  of 
section  1364  of  the  Charter  of  1897,  as  amended  in  1901,  read:  '*  In  a 
case  where  it  is  prescribed  by  law  such  an  action  can  be  maintained 
in  said  Municipal  Court  of  the  city  of  New  York,  or  in  any  court  not 
being  a  court  of  record."  It  will  be  observed  that  the  amendment  con- 
sists in  omitting  the  words.  "  in  said  Municipal  Court  of  the  city  of 
New  York,  or  in  any  court  not  being  a  court  of  record."  We  fail  to 
sec  how  this  omission  confers  the  jurisdiction  as  tbe  subdivision  now 
reads.  We  have  still  to  find  the  "ease  where  it  is  prescribed  ; 
that  such   an  action  can  be  maintained." 

Subdivision  10  of  section  1364  of  the  Charter  of  1897,  as  amended 
in  1901,  contained  a  similar  provision  in  giving  this  court  jurisdiction 


•§  1,  Subds.  5,  6.  Jurisdiction  and  General  Powers.     55 

upon  a  bond  of  a  marshal,  to  wit,  "  in  a  case  where  it  is  prescribed  by 
a  special  statutory  provision  that  such  an  action  can  be  maintained  in 
a  District  Court,  or  in  said  Municipal  Court,"  but  such  special  statu- 
tory provision  could  readily  be  found  in  said  Charter  o-f  1897,  as 
amended  in  1901,  the  same  being  section  1428  thereof. 

In  our  fourth  edition  of  this  work,  published  in  1898.  after  an  ex- 
haustive investigation  and  examination,  we  wrote  a  lengthy  note  upon 
this  subject,  coming  to  the  conclusion  that  no  such  jurisdiction  had 
been  conferred,  and  it  does  not  seem  that  the  present  subdivision  has 
conferred  such  jurisdiction.     See  also  §§   178  and  339,  and  notes. 

Jury  trial. —  If  this  court  has  jurisdiction  of  such  an  action,  it  seems 
a  jury  trial  of  twelve  men  may  now  be  had.  Under  the  provisions  of 
former  section  1369  of  the  Charter  of  1897,  as  amended  in  1901,  sub- 
division 8  of  -section  13G4,  purporting  to  give  jurisdiction  "  upon  a 
bastardy  or  abandonment  bond,"  was  excepted  thereby  from  such  jury 
trial.  Section  1369  has  now  been  repealed  and  no  disposition  has  been 
made  of  the  exception. 

5.  An  action  upon  the  bond  of  a  marshal  of  the  city  of 
ISTew  York,  as  prescribed  in  this  act. 

Notes  to  section   i,  subdivision  5. 

This  subdivision  is  taken  from  subdivision  10  of  the  Charter  of  1897, 
as  amended  in  1901.  It  was  formerly  subdivision  9  of  section  1285 
of  the  Consolidation  Act  (Laws  1882,  chap.  410),  and  subdivision  4  of 
.section  3215  of  the  Code  of  Civil  Procedure.  The  former  provisions 
as  to  the  maintenance  of  this  action  are  annulled  and  are  now  pro- 
vided for  in  sections  295-300. 

Jury  trial. —  A  jury  trial  of  twelve  men  may  now  be  had.  Under  the 
provisions  of  former  section  1369  of  the  Charter  of  1897,  as  amended 
in  1901,  subdivision  10  of  section  1364,  giving  jurisdiction  of  an  action 
"  upon  the  bond  of  a  marshal,"  was  excepted  from  such  jury  trial. 
Section  1369  has  now  been  repealed,  and  no  disposition  has  been  made 
of  the  exception. 

6.  An  action  upon  a  judgment  rendered  in  any  court  not 
being  a  court  of  record. 

Notes  to  section   1,  subdivision  6. 

This  subdivision  is  taken  from  subdivision  6  of  the  Charter  of  1897, 
as  amended  in  1901,  and  was  formerly  subdivision  5  of  section  1285 
of  the  Consolidation  Act  (Laws  1882,  chap.  410),  and  subdivision  6 
of  section  2862  of  Code  of  Civil  Procedure. 


56        Jurisdiction   a.\i>  General  Powers.     §  1,  Subd.  7. 

The  provisions  as  to  the  maintenance  of  an  action  upon  a  judgment 
against  joint  debtors,  where  one  of  them  has  been  served,  are  to  be 
found  in  sections  2d4  to  268. 

Section  268  provides  for  an  action  upon  a  judgment  obtained  against 
joint  debtors. 

Statute  of  limitations. —  By  section  380,  Code  Civ.  Proc,  "  The  follow- 
ing actions  must  he  commenced  within  the  following  periods,  after 
the  cause  of  action  accrued.'' 

§  382,  Code  Civ.  Proc.  Within  six  years. —  Subd.  7.  "An  action 
upon  a  judgment  or  decree  rendered  in  a  court  not  of  record,  except 
where  a  transcript  shall  be  filed  pursuant  to  section  3017  of  this  act, 
and  also  except  a  decree  in  a  Surrogate's  Court  of  the  State.  The 
cause  of  action  in  such  a  case  is  deemed  to  ha-ve  accrued  when  final 
judgment   was   rendered." 

See  also  Harris  v.   Clark,  47  N.   Y.  St,   Rep.  780. 

7.  An  action  for  a  fine  or  penalty  not  exceeding  five  hun- 
dred dollars,  including  an  action  to  recover  a  penalty  given 
by  the  charter  of  the  city  of  Xew  York  or  any  by-law  or 
ordinance  thereof  or  by  any  statute  of  the  state. 

Notes  to  section   i,  subdivision  7. 

This  subdivision  is  the  same  as  subdivision  3  of  the  Charter  of  1897, 
as  amended  in  1901,  without  any  change.  It  was  taken  from  sub- 
division 7  of  section  1285  of  the  Consolidation  Act  (Laws  1882,  chapter 
410). 

For  general  provisions  respecting  "  action  for  a  fine,  penalty,  or  for- 
feiture, or  upon  a  forfeited  recognizance,"  see  Code  Civ.  Proc,  §§  1961— 
1968. 

Building  Code. —  Violation  of  penalties  of;  all  courts  have  jurisdic- 
tion. See  §  151,  Building  Code,  ordained  by  Municipal  Assembly  pur- 
suant to  §  647,  Greater  New  York  Charter. 

Bureau  for  the  recovery  of  penalties. —  By  section  259  of  the  Charter 
(Laws  1901,  chap.  466),  such  a  bureau  is  created  in  the  law  depart- 
ment of  the  corporation  counsel  to  recover  penalties  for  the  violation 
of  any  law  or  municipal  ordinance,  called  the  "  Bureau  for  the  Recov- 
ery of  Penalties." 

Commissioner  of  docks. —  By  section  816  of  the  charter,  the  head 
of  the  department  of  docks  and  ferries  is  called  the  commissioner  of 
docks,  and  by  section  827  he  is  given  power  to  make  general  ordinances, 
for  a  violation  of  which  a  penalty  of  $500  is  imposed,  recoverable  by 
suit  in  the  name  of  the  city  of  New  York,  to  be  prosecuted  by  the 
corporation  counsel. 


§  1,  Subd.  7.     Jurisdiction  and  General  Powers.        57 

Department  of  health. —  Violations  of  department  orders ;  action  for, 
and  penalties.     See  §    1202,  Greater  New  York  Charter. 

Fire  commissioner  may  sue  for  a  penalty  in  his  own  name.  Charter 
of  1901,  §  731. 

Fish  poles. —  By  sections  736  to  739  of  the  Consolidation  Act  (Laws 
1882,  chap.  410),  left  unaffected  by  the  Charter  of  1897,  as  amended  in 
1901,  a  penalty  of  $5  is  imposed  for  each  pole  driven  for  the  purpose 
of  fishing  where  the  water  is  of  greater  depth  than  six  feet  in  mean  low 
tide. 

Oysters  taken  out  of  the  Harlem  river. —  The  provisions  of  the 
Consolidation  Act  (Laws  1882,  chap.  410,  §§  767,  769,  770),  relating 
to  this  subject,  and  the  recovery  of  the  $50  penalty  for  a  violation 
thereof,  are  left  unaffected  by  the  Charter  of  1897,  as  amended  in  1901. 

Pilots;  commissioners. —  By  section  771  of  the  Consolidation  Act, 
all  fines  and  penalties  incurred  under  sections  736,  746,  748,  756,  764, 
and  747  to  783,  inclusive,  of  the  Consolidation  Act,  shall  be  recoverable 
by  and  in  the  name  of  the  commissioners  of  pilots. 

Section  771   of  the  Consolidation  Act  has  been  left  unaffected. 

Sections  746,  780,  781,  782  of  the  Consolidation  Act  are  superseded 
by  the  Charter    section  880. 

Section  748  of  the  Consolidation  Act  is  superseded  by  Laws  1882, 
chapter   160. 

Section  756  of  the  Consolidation  Act  is  affected  by  section  4653  ct  scq. 
of  the  United  States  Revised  Statutes. 

Section  764  of  the  Consolidation  Act  is  affected  by  section  417S  of 
the  United  States   Revised  Statutes. 

Sections  777,  778,  and  779  of  the  Consolidation  Act  are  revised  by 
the  Charter  sections  851,  852,  and  853. 

Sections  780,  781,  782,  and  783  of  the  Consolidation  Act  are  revised 
and  superseded  by  the  Charter    section  880. 

Pilotage  fees. —  Authorized  to  be  collected  whenever  a  pilot  shall  be 
refused  by  a  vessel  navigated  by  steam,  to  be  sued  for  and  recovered 
in  the  name  of  the  pilot  tendering  such  service;  and  such  pilotage 
when  recovered  shall  belong  to  and  may  be  retained  by  such  pilot  for 
his  own  use  and  benefit.  §  2134,  Cons.  Act,  as  amended  by  Laws  1890, 
chap.   191,  p.   403.      (Unaffected  by  the  Charter.) 

Port  wardens. —  The  recovery  of  $100  penalty  for  violation  of  duties 
as  prescribed  in  section  2090  of  the  Consolidation  Act  are  unaffected 
by  the  Charter  of  1897,  as  amended  in  1901. 

Steamboats.— By  section  757  of  the  Consolidation  Act  (unaffected 
by  the  Charter  of  1897,  as  amended  in  1901),  steamboats  must  run  in 
the  center  of  the  river  at  a  speed  not  exceeding  eight  miles  an  hour 
under  a  penalty  of  $250  fine,  to  be  sued  for  in  the  name  of  the  people 
by  the  district  attorney  of  any  county  bordering  on  the  waters  on 
which  the  offense  shall  have  been  committed. 


58  JURISDICTION    AND    GENERAL     POWERS.       §  1,  SlJBD.  8. 

Further  and  other  fines  and  penalties  for  violations  are  fixed  by 
various  ordinances,  statutes,  and  laws,  among  others,  the  size  of  apple, 
pear,  and  potato  barrels;  refusal  to  permit  a  stockholder  to  inspect 
stock-books;  unlawful  possession  of  milk  and  cream  cans,  and  the 
Game  Laws,  over  all  of  which,  and  many  others,  this  court  has  juris- 
diction by   the   broad   and  general   language  of  this  section. 

Action  where  to  be  brought. —  By  section  25  of  this  act,  subdivision 
5,  the  action  to  recover  a  fine  or  a  penalty  must  be  brought  in  the 
district  in  which  the  violation  happened  or  occurred. 

Indorsement  on  summons. —  In  actions  to  recover  a  penalty  there 
must  be  an  indorsement  on  the  summons  containing  a  reference  to  the 
statute  in  the  form  provided  by  section  38  of  this  act.  See  also  Code 
Civ.  Proc,  §  1897,  and  Schumaker  v.  Brooks,  24  Hun,  553. 

8.  An  action  to  recover  damages  for  an  escape  from  the 
jail  liberties  of  any  county  within  the  city  of  New  York, 
where  the  sum  claimed  does  not  exceed  five  hundred  dollars. 

Notes  to  section   i,  subdivision  8. 

This  subdivision  was  subdivision  9  of  the  Charter  of  1897,  as  amended 
in  1901,  and  has  been  very  materially  amended.  Prior  to  1897  the 
District  Courts  had  no  such  jurisdiction,  and  when  it  was  given  to  this 
court  by  subdivision  6  of  section  1364  of  the  Charter  of  1897,  the 
amount  was  limited  to  $100,  as  provided  by  chapter  2,  title  2,  articles 
4  and  5,  sections  145  to  171,  of  the  Code  of  Civil  Procedure,  relating  to 
jail  liberties,  escapes,  and  actions  upon  undertakings  for  jail  liberties. 

Execution  against  the  person. —  A  marshal  was  directed  by  an  execu- 
tion to  satisfy  the  same  out  of  the  debtor's  property,  and  if  sufficient 
property  could  not  be  found,  to  arrest  him  and  commit  him  to  jail,  there 
to  remain  until  he  paid  the  judgment  or  was  lawfully  discharged. 
While  the  debtor  was  in  the  custody  of  the  marshal,  the  latter  was 
served  with  an  order  to  show  cause  why  the  judgment  should  not  be 
opened  by  a  temporary  stay.  He  took  the  prisoner  to  the  courthouse 
of  the  district  judge,  who  had  departed.  The  hearing  of  the  motion 
was  adjourned,  and  the  marshal  voluntarily  allowed  the  prisoner  to 
go  at  large.  Held  an  escape.  Even  if  the  judge  had  power  to  granl 
a  stay  after  final  judgment,  the  one  granted  did  not  authorize  debtor's 
discharge.     Zenner  v.  Blessing,  4  N.  Y.  Supp.  866. 

Liability  of  bail;  debtor  insolvent. —  On  an  escape  from  the  liberties 
of  the  jail  by  an  execution  debtor  who  is  served  with  summons,  and  the 
action  on  the  undertaking  begun  while  he  is  beyond  the  jail  limits, 
the  surety  is  liable  for  the  amount  of  the  debt  for  which  the  debtor 
w.i-  committed,  although  the  debtor  be  insolvent.  Flynn  v.  Vi  ion 
Surety  &  Guaranty  Co.,  til  App.  Div.  170,  70  X.  Y.  Supp.  403. 


§  1,  Subd.  9.     Jurisdiction  and  General  Powers.        59 

Liability  of  officer. —  In  an  action  against  an  officer  for  the  escape  of 
a  judgment  debtor,  against  whose  person  an  execution  was  delivered 
to  defendant,  plaintiff  must  show  that  the  judgment  debtor  was  taken 
into  custody  before  the  alleged  escape.  Jackson  v.  Comisky,  30  Misc. 
Rep.   022. 

Return  of  prisoner. —  The  voluntary  return  of  the  prisoner  after  the 
action  is  begun  does  not  affect  the  liability  of  the  surety  under  section 
160  of  the  Code  of  Civil  Procedure.  Flynn  v.  Union  Surety  &  Guaranty 
Co.,  01  App.  Div.  170,  70  N.  Y.  Supp.  -103. 

9.  An  action  to  recover  one  or  more  chattels  with  or  with- 
out damages  for  the  taking,  withholding  or  detention  thereof, 
where  the  value  of  the  chattel  or-  of  all  the  chattels  as  stated 
in  the  affidavit  made  on  the  part  of  the  plaintiff  does  not  ex- 
ceed five  hundred  dollars. 

Notes  to  section  i,  subdivision  9. 

.This  subdivision  is  the  same  as  subdivision  7  of  the  Charter  of  1897, 
as  amended  in  1901,  and  was  formerly  subdivision  6  of  section  1285 
of  the  Consolidation  Act,  and  section  2682  of  the  Code  of  Civil  Pro- 
cedure. 

Title  III,  article  III,  sections  95  to  131,  of  this  act,  provides  for 
"  Replevin  "  or  the  proceedings  in  an  "Action  to  recover  a  chattel." 

The  action  of  replevin  is  based  upon  a  tortious  act  of  defendant,  and 
is  an  action  ex  delicto.  Bernheimer  v.  Hartmayer,  50  App.  Div.  316, 
63  X.  Y.  Supp.  978. 

When  the  action  lies. —  Plaintiff  must  have  legal  title  to  the  prop- 
erty, and  though  defendants  do  not  prove  title  in  themselves,  but  in 
a  club,  they  having  interposed  a  general  denial,  which  put  in  issue 
plaintiff's  property  in  the  chattels  as  well  as  a  wrongful  detention. 
Held,  the  plaintiff  was  not  entitled  to  judgment.  Levy  v.  Kelter,  63 
App.  Div.  392,  71  N.  Y.  Supp.  509.  See  also  Shapiro  v.  Lankay,  35 
Misc.  Rep.  39,  70  N.  Y.  Supp.  218. 

Bankruptcy. —  A  trustee  in  bankruptcy  may  bring  an  action  in  this 
court  to  recover  chattels  in  which  he  had  an  interest  at  the  time  the 
petition  was  filed.  Franker  v.  MoAdam,  32  Misc.  Rep.  512,  66  N.  Y. 
Supp.    379. 

Conditional  sale. —  The  plaintiff  may  recover  the  goods  on  default  of 
payment  without  tendering  money  received.  Scher  v.  Roher,  34  Misc. 
Rep.  792,  69  N.  Y.  Supp.  929. 

The  owner  of  a  sewing  machine,  sold  with  a  condition  precedent  of 
payment,  is  not  entitled  to  maintain  an  action  of  replevin,  where  she  is 
in  default  as  to  payments  required;   nor  can  she  recover  damages  for 


GO        Jurisdiction  and  General  Powers.     §  1,  Subd.  0. 

the  unlawful  detention  of  the  machine  where  she  has  not  proved  any 
damages,  but  merely  the  value  of  the  machine.  Tserman  v.  Conklin, 
21    Misc.   Rep.    194.      See  also   Hemstreet   v.    Henley,  21    Misc.   Rep.   420. 

Custody  and  control. —  An  action  of  replevin  is  not  maintainable 
against  the  fraudulent  buyer  of  goods  where,  prior  to  the  demand  for 
their  return,  and  before  the  commencement  of  the  action,  they  were 
taken  from  defendant  on  execution  against  him  and'  sold,  so  that,  at 
the  time  of  such  demand  and  commencement  of  the  action,  they  were 
not  in  the  defendant's  custody  or  control.  Svnnott  v.  Felack,  165 
X.   Y.  444. 

The  rule  is  that  replevin  is  essentially  a  possessory  action  which 
can  only  be  maintained  where  the  defendant  is  in  possession  of  the 
chattels  at  the  time  of  the  commencement  of  the  action  excepting  only 
ivhere  he  has  voluntarily  parted  with  the  property.  Sinnott  v.  Felack, 
165   N.   Y.    444. 

Damages. —  It  seems  that  while  jurisdiction  in  actions  of  replevin  is 
restricted  to  cases  in  which  the  value  of  the  chattel  shall  not  exceed 
$500,  there  is  no  limitation  upon  the  amount  of  damages  which  may 
therein  be  awarded.  Barnard  v.  Devinc,  34  Misc.  Rep.  182,  68  X.  Y. 
Supp.   859. 

Fraud. —  Where  property  has  been  acquired  fraudulently,  under  cir- 
cumstances which  would  entitle  the  vendor  to  reclaim  the  same,  and 
the  seller  has  sold  it  with  intent  to  perfect  the  fraud,  and  put  it  be- 
yond the  reach  of  the  seller,  an  action  to  recover  the  same  lies,  though 
the  property  is  no  longer  in  the  defendant's  possession.  Barnett  v. 
Selling,  70  N.  Y.  492;   s.  c,  9  Hun,  236. 

An  action  for  a  chattel  will  lie  against  a  person  receiving  it.  with 
knowledge,  from  a  fraudulent  vendee,  although  he  had  parted  with  the 
chattel  before  the  action  was  commenced.  Meacham  v.  Collignon, 
7    Daly,  402. 

Interest  in  property. —  Where  the  owner  of  a  hotel  leases  the  hotel 
property,  leaving  whisky,  which  is  part  of  his  stock  in  trade,  in  the 
possession  of  the  lessees  under  an  agreement  that  the  latter  should 
retail  it  over  their  bar  and  pay  him  for  what  they  so  used,  the  lessees 
have  an  interest  in  the  whisky  which  is  subject  to  seizure  and  sale 
under  execution.  In  an  action  of  replevin  the  plaintiff  is  not  entitled 
to  recover  as  damages  the  value  of  the  legal  services  rendered  in  the 
premises  to  him  by  his  attorney  prior  to  the  commencement  of  the 
action.     Cook  v.  Gross,  60  App.  Div.  446. 

Mingling  goods. — In  an  action  to  recover  grain,  where  the  defendant 
had  mixed  his  own  grain  with  that  of  the  plaintiff,  held,  that  it  was  a 
case  of  confusion  of  goods,  and,  as  the  grain  could  not  be  separated, 
the  defendant  could  not  thus  defeat  the  action,  and  must  bear  the  loss. 
Samson  v.  Hose,  65  X.  Y.  411. 


§  1,  Subd.  9.     Jurisdiction  and  General  Powers.        61 

Money. —  Replevin  will  not  lie  for  money  unless  belonging  lo  plaintiff 
specifically  and  so  described.     Sager  v.  Main,  44  N.  Y.  445. 

No  title. —  So  the  action  lies  against  one  who  lias  sold  the  goods  hav- 
ing innocently  purchased  from  one  having  no  title.  Ross  v.  Cassidy, 
27  How.  Pr.  411. 

Offer  to  restore  property. —  The  object  of  the  proceeding  is  the  re- 
covery of  the  property ;  and  if,  before  the  action  is  brought,  the  de- 
fendant offers  to  restore  the  property,  the  object  is  attained,  and  the 
proceeding  is  unnecessary.  The  offer  is  the  same  as  a  tender  before 
action  brought.     Savage  v.  Perkins,   11   How.  Pr.   17. 

Possession. —  The  owner  may  maintain  replevin  if  a  chattel  is  taken 
from  his  actual  or  constructive  possession.     Ely  v.  Ehle,  3  X.  Y.  506. 

An  action  can  be  maintained  in  favor  of  a  plaintiff  who  has  either 
the  title  to  the  property  or  the  right  of  its  immediate  possession ;  both 
need  not  be  combined.  Davis  v.  Morrell,  16  Week.  Dig.  530;  Sard  I  v. 
Wauful,  21  Civ.  Proc.  Rep.  18,  16  N.  Y.  Supp.  219.  See  also  Appleby 
v.  Hollands,  8  App.  Div.  375;  Wheeler  v.  Vandeveer,  88  Hun,  233. 

Replevin  will  lie,  although  the  defendant  has  parted  with  the  posses- 
sion of  the  property,  and  it  has  passed  beyond  the  reach  of  the  process 
of  the  court.  Bamett  v.  Selling,  3  Abb.  N.  C.  83;  s.  c,  9  Hun,  236; 
affd.,  70  N.  Y.  492;  Boyd  v.  Hoicden,  3  Daly,  455.  See  Sinnott  v. 
Felack,   165  N.  Y.  444. 

The  owner  of  a  chattel  may  in  general  replevy  it  from  any  person 
who  has  it  in  his  possession  and  who  has  no  right  to  retain  it  as. 
against  him.  Read  v.  Brayton,  143  N.  Y.  342.  See  also  National 
Bank,  etc.  v.  Rogers,  1  App.  Div.  625;  Hoffman  v.  Markham,  88  Hun, 
18. 

Promissory  notes  and  checks. —  In  order  to  enable  the  plaintiff  to 
maintain  an  action  for  the  recovery  of  promissory  notes,  a  title  to  the 
note  must  be  shown :  a  right  to  their  proceeds  will  not  suffice.  Black 
River  Ins.  Co.  v.  AT.  Y.  S.  Loan  &  T.  Co.,  73  N.  Y.  282. 

A  note  delivered  by  plaintiff  to  defendant,  upon  his  stipulation  not  to 
part  with  it,  may  be  recovered,  although  defendant  has  pledged  it  as 
collateral  security  for  an  indebtedness  owing  to  him.  Etrell  v.  De  Pen- 
nevet,  14  Civ.   Proc.  Rep.  336. 

Where,  by  the  contract  of  sale,  the  property  is  forfeited  for  nonpay- 
ment of  the  purchase  money,  and  the  plaintiff,  after  a  demand,  takes 
the  defendant's  check  for  the  amount  due,  and  the  check  is  not  paid, — 
Held,  that  the  action  would  not  lie,  without  the  return  of  the  check 
and  a  new  demand.     Smith  v.  Newland,  9  Hun,  553. 

The  action  will  not  lie  for  a  check  after  it  has  been  presented  to  and 
paid  by  the  drawee,  and  returned  as  a  voucher  to  the  drawer.  Smith 
v.  Neivland,  9  Hun,  553. 

Property  accidentally  destroyed. —  There  is  no  liability  where  goods 
came    lawfully    into    defenuant's    possession    and    were    accidentally 


62      Jurisdiction   am)  General  Powers.     §  1,  Subd.  10. 

destroyed.     Salt    Springs   X.    H.   v.    Wheeler,   4S   X.   Y.   492.     And    see 
Dexter  v.  Dexter,  56  N.  Y.  Super.  568. 

Property  out  of  the  county. —  Tins  court  has  jurisdiction  of  an  action 
of  claim  and  delivery  unlawfully  taken  and  detained  in  another  county. 
Jioi/d  v.  Howden,  3  Daly.  455;  Luban  v.  Simaids,  46  App.  Div.  L92,  61 
N.  Y.  Supp.  697;  Barnett  v.  Selling,  3  Abb.  N.  C.  83;  s.  c,  9  Hun,  236; 
affd.,  70  N.  Y.   492. 

Sheriff;  action  against. —  This  court  lias  jurisdiction  of  actions  against 
the  sheriff  m  recover  property  alleged  to  have  been  wrongfully  seized 
by  him.  Price  v.  Grant,  15  Daly,  436;  s.  c,  28  N.  Y.  422,  7  X.  Y. 
Supp.  !KI4  ;   Stoutenburg  v.  Janscn,  9  Johns.   369. 

Special  property;  value  of  the  chattel. —  In  an  action  for  a  chattel, 
where  the  plaintiff  has  a  special  property  in  the  chattel,  the  value  of 
the  special  property  is  regarded  as  the  value  of  the  chattel  for  the 
purpose  of  determining  the  jurisdiction  of  the  court.  Shea  v.  Smith, 
12  Week.  Dig.   252. 

Surety  may  continue  action. —  A  surety  upon  an  undertaking  in  re- 
plevin may  prosecute  the  action  brought  by  the  principal  after  the 
latter  had  abandoned  it.     Hoffman  v.  Steinau,  34  Hun,  239. 

Tenants  in  common. —  The  action  will  not  lie  in  favor  of  one  tenant 
in  common  of  a  chattel,  against  the  other  tenant  and  a  purchaser  from 
him,  although  the  plaintiff's  cotenant  has  delivered  the  chattel  to  the 
third  person.  Hudson  v.  Swan,  83  N.  Y.  552,  revg.  s.  c,  7  Abb.  N.  C. 
324. 

Value;  special  interest. —  In  an  action  for  claim  and  delivery  of  per- 
sonal property,  the  special  interest  of  the  plaintiff  is  regarded  as  the 
value,  so  as  to  give  jurisdiction.     Shea  v.  Smith,  12  Week.  Dig.  254. 

Wife's  property. —  A  wife  living  apart  from  her  husband  may.  ;i tin- 
demand  and  refusal,  maintain  the  action  to  recover  her  personal  prop- 
erty, which  remained  in  the  husband's  house  when  she  left  it.  Howland 
v.   Howland,  20  Hun,  472. 

A  levy  by  a  sheriff,  holding  an  execution  against  a  husband,  upon  the 
wife's  property,  is  such  an  act  of  dominion  over  it  as  will  sustain  re- 
plevin, although  there  was  no  actual  removal,  and  the  sheriff  claimed 
to  levy  upon,  and  advertise  only,  the  husband's  interest  in  the  property, 
he  having  in  fact  no  interest.     Alvord  v.  Haynes,  13  Hun.  26. 

A  cartman  who  takes  and  delivers  to  the  husband  property  of  the 
wife  from  the  room  occupied  by  them  is  liable  to  her  in  replevin.  Mead 
v.  Jack,  16  Week.  Dig.  403. 

10.  An  action  to  foreclose  a  lien  upon  a  chattel  for  a  sum 
of  money,  in  any  case  where  such  a  lien  exists  at  the  com- 
mencement of  the  action  and  where  the  amount  of  the  lien 
does  not  exceed  five  hundred  dollars. 


§  1,  Subd.  10.     Jurisdiction  and  General  Powers.      03 

Notes  to  section   i,  subdivision  io. 

By  section  1285,  subdivision  10,  of  the  Consolidation  Act  (Laws  1882, 
chap.  410),  jurisdiction  of  an  "action  to  foreclose  a  lien  upon  a  chat- 
tel "  had  been  expressly  given  to  the  District  Courts,  but  the  provision 
was  omitted  from  the  Charter  of  1897,  as  amended  in  1901.  It  seems 
however  that  by  sections  1737  and  3215  of  the  Code  of  Civil  Procedure, 
the  District  Courts  and  this  court  nevertheless  had  such  jurisdiction. 
Such  jurisdiction  is  now  expressly  conferred  by  this  subdivision.  The 
procedure  in  an  "  action  to  foreclose  a  lien  on  a  chattel  "  are  to  be 
found  in  sections  137  to  142.  The  provisions  of  this  subdivision  are 
substantially  reiterated  in  section  137. 

Animals,  wagon,  etc.,  or  harness;  lien  of  bailee. —  A  person  keeping 
a  livery-stable,  or  boarding-stable  for  animals,  or  pasturing  or  board- 
ing one  or  more  animals,  or  who  in  connection  therewith  keeps  or 
stores  any  wagon,  truck,  cart,  carriage,  vehicle,  or  harness,  has  a  lien 
dependent  upon  the  possession  upon  each  animal  kept,  pastured,  or 
boarded  by  him,  and  upon  any  wagon,  truck,  cart,  carriage,  vehicle,  or 
harness,  of  any  kind  or  description,  stored  or  kept,  under  an  agreement 
with  the  owner  thereof,  whether  such  owner  be  a,  mortgagor  remaining 
in  possession  or  otherwise,  for  the  sum  due  him  for  the  care,  keeping, 
boarding,  or  pasturing  of  the  animal,  or  for  the  keeping  or  storing  of 
any  wagon,  truck,  cart,  carriage,  vehicle,  and  harness,  under  the  agree- 
ment, and  may  detain  the  animal  or  wagon,  truck,  cart,  carriage, 
vehicle,  and  harness  accordingly,  until  such  sum  is  paid.  Laws  1899, 
chap.  465,  p.  942.  See  Gotta  v.  Carr,  27  Misc.  Rep.  245;  Lessels  v. 
Farnsicorth,  13  Daly,  473;   Gorman  v.  Williams,  26  Misc.  Rep.  776. 

Artisan's  lien  on  personal  property. —  A  person  who  makes,  alters, 
repairs,  or  in  any  way  enhances  the  value  of  an  article  of  personal 
property,  at  the  request,  or  with  the  consent  of  the  owner,  has  a  lien 
on  such  article,  while  lawfully  in  possession  thereof,  for  his  reason- 
able charges  for  the  work  done  and  materials  furnished,  and  may  retain 
possession  thereof  until  such  charges  are  paid.  Laws  1897,  chap.  418, 
§  70,  an  act  in  relation  to  liens,  constituting  chap.  49  of  the  General 
Laws.  O'Claire  v.  Hale,  35  App.  Div.  77 ;  Wiles  Laundering  Co.  v. 
Huhlo,   10.3  N.  Y.  234. 

Bailment;  lien. —  Plaintiff  delivered  certain  carriages  to  defendant 
to  be  repaired.  When  the  repairs  were  partly  done  plaintiff  demanded 
their  return  in  the  condition  they  then  were,  but  made  no  tender  of 
the  amount  due  for  the  repairs  already  made.  This  demand  was 
refused,  as  olaintiff  and  his  witness  testify,  unless  a  previous  bill  was 
paid,  which  was  denied  by  one  of  the  defendants  and  the  testimony  of 
defendant's  attorney  who  offered  to  deliver  the  carriage  on  payment 
of  the  bill  for  services  and  material  bestowed  on  them.  Held,  that  a 
decision  in  favor  of  defendants  would  not  be  disturbed.  After  the 
demand  the  defendants  completed  the  repairs.     Held,  that  this  work 


64     Jurisdiction  and  General  Powers.     §  1,  Subd.  10. 

was  authorized  by  the  contract  entered  into  on  the  delivery  of  the 
carriages  to  them,  and  that  defendants  had  a  Lien  on  the  carriages  tor 
such  repairs.     Shailer    Recr.  \.  Corbett  et  al.,  40  X.  Y.  St.  Rep.  786. 

Boarding-house  keeper;  who  is? — The  statute  is  only  designed  to 
protect  a  class  of  persons  which  makes  the  keeping  of  boarders  a  busi- 
ness or  calling,  in  whole  or  in  part.  It  is  not  every  private  house  where 
one  or  more  boarders  are  kept  occasionally  only,  and  upon  special  con- 
siderations. It  i-  a  gi*asi-public  house,  where  boarders  are  generally 
and  habitually  kept,  and  whicn  is  held  such,  and  known  as  a  place  of 
entertainment,  of  that  kind.  The  boarding-house-keeper  is  n  t  hound 
to  receive  any  one,  except  upon  special  contract.  A  housekeeper,  not 
accustomed  to  take  persons  to  board,  receiving  a  person  and  his  family 
into  his  house  for  an  indefinite  time,  with  the  understanding  that  lie 
wa-  to  be  paid  for  the  board  and  accommodations,  is  not  a  boarding- 
house-keeper  allowing  a  detention  of  the  baggage  and  effects  of  boarders 
for  board  due.     Cody  v.  McDowell,   I    Lans.  4S4. 

Extent  and  limit  of  boarding-house  keeper's  lien. —  The  intent  of  the 
statute,  giving  to  the  keeper  of  a  boarding-house  a  lien  to  the  extent 
of  the  board  due,  is  to  give  them  the  same  lien  which  an  innkeeper  has 
upon  the  effects  of  a  guest,  without  reference  to  the  character  of  the 
guests,  whether  they  are  transient  or  permanent  boarders.  Stewart 
V.  McCready,  24  How.  Pr.  G2.     And  see  Cady  v.  McDowell,  1  Lans.  4S4. 

It  extends  to  property  of  a  guest  which  is  exempt  from  levy  and 
sale  on  execution.     Thorn  v.   Whitbeck,   11   Misc.  Rep.  175. 

The  limit  of  the  lien  is  for  board  actually  due,  and  not  including 
board  to  become  due  under  an  arrangement  to  board  in  future,  nor  can 
it  be  extended  to  any  other  indebtedness,  nor  to  any  demand  not  due  at 
the  time  of  the  detention.  Shafer  v.  Guest,  35  How.  Pr.  184;  s.  c,  6 
Robt.  264. 

Boarding-house  keeper  not  to  have  lien  when  he  had  notice  that  prop- 
erty was  not  the  property  of  the  guest.     Laws  1899,  chap.  380,  p.  834. 

Wife's  wearing  apparel,  or  separate  property,  cannot  be  detained  by 
a  boarding-house-keeper  for  board  owing  by  the  husband  for  herself 
and  family.     McTlvaine  v.  Hilton,  7  Hun,  594. 

Book  accountants  employed  to  examine  lx>oks  of  account  have  no 
lien  upon  the  books  for  their  services.  Scott  Shoe  Machinery  Co.  v. 
Broaker,  35  Misc.  Rep.  382. 

Carriages  and  other  vehicles  when  sold  conditionally  are  exempt  from 
lien.  Laws  1898,  chap.  354,  p.  1019,  amending  Laws  1897,  chap.  418, 
§  115. 

Choses  in  action. —  This  subdivision  is  taken  from  sections  1737,  3215, 
subdivision  1  of  the  Code  of  Civil  Procedure,  and  section  1285,  sub- 
division 10,  Consolidation  Act,  and  applies  to  chattels  and  not  to  mere 
choses  in  action.     Matter  of  Wilson,  2  Civ.  Proc.  Rep.  343. 

Common  law  liens,  embracing,  "  1.  A  brief  review  of  the  common  law 
on  the  subject  of  liens;  2.  Liens  of  various  bailees  under  the  common 


§  1.  Sunn.  10.     Jurisdiction  and  General  Powers.      G5 

law;  .3.  Lion  of  the  warehouseman  and  the  wharfinger's  lien  before 
the  statute,"  will  be  found  in  Stallman  v.  Kimberly,  23  Abb.  N.  C.  245. 
See  also  Buffalo  Dry  Dock  Co.  v.  Ladenburg,  10  App.  Div.  3'-). 

When  a  lien  exists. —  A  lien  exists  either  by  express  agreement  of 
the  parties,  or  is  implied  from  their  mode  of  dealing,  or  it  follows 
from  the  established  usage  of  trade,  or  it  is  founded  upon  the  im- 
memorial recognition  by  the  common  law  of  a  right  to  it  in  special 
com's.  It  semis  the  lien  is  recognized  in  the  case  of  every  bailee  for  hire 
who  takes  property  in  the  way  of  his  trade  and  occupation,  and  by  his 
labor  and  skill  imparts  additional  value  to  it.  Trust  v.  Pirsson,  1  Hilt. 
202. 

When  a  lien  dees  net  exist. —  If  a  special  agreement  for  a  particular 
mode  of  payment,  or  for  payment  at  a  future  period,  is  made  in  any 
case  in  which  a  right  of  lien  would  otherwise  be  implied,  the  lien  dots 
not  exist.  If  such  an  agreement  is  made  before  the  claimant  acquires 
possession  of  the  chattel  no  lien  is  created;  if  made  thereafter  it  is  a 
waiver  of  the  lien.     Trust  v.  Pirsson,   1  Hilt.  292. 

When  lien  is  and  is  not  defeated. —  As  between  the  debtor  and  creditor 
however  the  lien  is  not  defeated  by  loss  of  possession,  unless  the 
creditor  voluntarily  parted  with  possession,  intending  to  abandon  the 
lien.  Allen  v.,Spencer,  1  Edm.  117;  Kafka  v.  Levensohn,  IS  Misc.  Rep. 
202,  41  N.  Y.  Supp.  368. 

Ccnditicnal  sales;  exemption  from  lien  law. —  By  Laws  189S,  chap. 
354,  p.  1019,  amending  section  115  of  the  Lien  Law  of  1S9"  (chap.  418), 
conditional  sales  of  household  goods,  law  books,  law  blanks,  and  law 
office  supplies,  pianos,  organs,  safes,  scales,  butcher's  and  meat  market 
tools  and  fixtures,  wood-cutting  machinery,  engines,  dynamos,  boilers, 
portable  furnaces,  boilers  for  heating  purposes,  threshing  machines, 
horse  powers,  mowing  machines,  reapers,  harvesters,  graindrills  and 
attachments,  dairy  sizes  of  centrifugal  cream  separators,  coaches, 
hearses,  carriages,  buggies,  phaetons,  and  other  vehicles,  bicycles,  tri- 
cycles, and  other  devices  for  locomotion  by  human  power,  if  the  con- 
tract for  the  sale  thereof  is  executed  in  duplicate,  and  one  duplicate 
delivered  to  the  purchaser,  do  not  apply  to  the  Lien  Law,  and  are 
exempt  therefrom. 

Discharge  of  lien. —  If  the  mechanic  makes  agreement  with  owner 
of  chattel  upon  which  he  has  a  lien  for  services  to  look  to  a  third  party 
for  his  pay,  the  lien  is  discharged.  Bailey  v.  Adams,  14  Wend.  201. 
Compare  Fielding  v.  Mills,  2  Bcsw.  489;  Gorman  v.  Williams,  26  Misc. 
Eep.  77G. 

A  tender  of  the  debt,  and  demand  for  the  delivery  of  the  chattel,  dis- 
charges the  lien  thereon.  La  Motte  v.  Archer,  4  E.  D.  Smith,  46. 
Compare  Everett  v.  Coffin,  6  Wend.  603;  Hoyt  v.  Sprague,  61  Barb. 
497. 

5 


66      Jurisdiction  and  General  Powers.     §  1,  Subd.  10. 

Hotel,  inn,  boarding  and  lodging-house  keepers;  liens. —  A  keeper  of 
a  hotel,  inn,  boarding-house,  or  lodging-house,  except  an  emigrant 
lodging-house,  has  a  lien  upon,  while  in  possession,  and  may  detain 
the  baggage,  and  other  property  brought  upon  their  premises  by  a 
guest,  boarder,  or  lodger,  for  the  proper  charges  due  from  him,  on 
account  of  his  accommodation,  board,  and  lodging,  and  such  extras  as 
are  furnished  at  his  request.  If  the  keeper  of  such  hotel,  inn,  board- 
ing, or  lodging-house  knew  that  the  property  so  brought  upon  his 
premises  was  not,  when  brought,  legally  in  possession  of  such  guest,, 
boarder,  or  lodger,  or  had  notice  that  such  property  was  not  then  the 
property  of  such  guest,  boarder  or  lodger,  a  lien  therefor  does  not 
exist.  Laws  1899,  chap.  380,  p.  834.  See  Grinnell  v.  Cook,  3  Hill, 
485;   Smith  v.  Keyes,  2  T.  &  C.  G50. 

Law  books,  law  blanks  and  law  office  supplies  when  sold  conditionally 
was  exempt  from  a  lien.  Laws  1898,  chap.  354,  p.  1019,  amending 
Lien  Law  of  1897   (chap.  418),  §  115. 

Livery-stable-keeper's  lien;  agreement.—  Under  an  agreement  be- 
tween plaintiffs  and  defendant  that  the  latter  should  take  care  of 
plaintiff's  horse,  wagon,  and  harness,  and  they  were  to  have  possession 
and  use  of  the  same  in  their  business  every  day,  defendant  boarded  the 
horse,  and  cared  for  the  property.  Held,  that  defendant  had  no  lien 
for  the  value  of  the  keeping.     Cotta  v.  Carr,  27  Misc.  Rep.  545. 

The  bailee  of  a  horse  to  use  for  its  keeping,  made  an  arrangement 
with  a  livery-stable-keeper  without  authority  of  the  owner  for  the 
keeping  of  this  and)  another  horse,  and  thereafter  agreed  that  the  stable- 
keeper  should  retain  the  horse  so  bailed,  as  security  for  his  charges. 
Held,  that  the  owner  was  entitled  to  the  possession  of  the  horse. 
Eassett  v.  Sanborn,  62  App.  Div.  588. 

It  seems  that  the  livery-stable-keeper  had  no  lien  under  Laws  1897, 
chap.  418,  section  74,  for  the  reason  the  keeping  was  not  furnished 
"  under  an  agreement  with  the  owner.''  Hassett  v.  Sanborn,  62  App. 
Div.  588. 

Id.;  discharge. —  It  seems  that  acceptance  of  the  liability  of  a  new 
owner,  ignorant  of  the  existence  of  a  lien,  and  turning  over  the  prop- 
erty to  his  use,  discharges  the  lien  of  a  stable-keeper  on  a  horse  and. 
wagon,  though  they  remain  in  his  stable.  Gorman  v.  Williams,  26 
Misc.  Rep.  776. 

It  seems  that  acceptance  of  the  note  of  a  third  person  for  the  lia- 
bility waives  the  stable-keeper's  lien.  Gorman  v.  Williams,  26  Misc. 
Rep.  776. 

Id.;  extent  of  lien;  tender. —  The  lien  of  a  livery-stable-keeper  does 
not  extend  to  secure  other  claims  than  those  on  the  property  in  his 
custody;  and  on  being  called  upon  by  an  assignee  of  the  property,  who 
desires  to  pay  the  lien,  to  state  the  amount  due,  if  he  demands  a  sum 
largely  in  excess  thereof,  not  disclosing  the  amount  of  the  lien,  the 


§  1,  Subd.  10.     Jurisdiction  and  General  Powers.      07 

assignee  is  not  obliged  to  make  a  tender  of  it  before  bringing  suit  for 
the  recovery  of  the  property.     Allen  v.   Corby,  59  App.  Div.   1. 

Id.;  notice. —  Where  plaintiff  claimed  a  stable-keeper's  lien  on  account 
of  a  horse  bought  from  a  third  person  by  defendant  but  which  she  had 
notified  plaintiff  she  did  not  own,  having  annulled  the  sale,  and  he 
must  look  to  the  seller  for  his  pay,  and  plaintiff  sought  to  enforce 
his  lien  against  three  horses,  including  two  which  defendant  owned, — 
//(/(/,  that  the  notice  imposed  upon  the  stable-keeper  the  duty  of  enforc- 
ing his  lien  within  a  reasonable  time,  or  otherwise  asserting  his  right, 
and  it  was  error  to  charge  that  the  notice  did  not  terminate  defendant's 
liability  for  the  keep  of  the  horse.  Mason  Stable  Co.  v.  Lewis,  10  Misc. 
Rep.  359,  74  X.  Y.  St.  Rep.   379,  38  N.  Y.  Supp.  82. 

While  possession  of  the  animal  by  the  livery-stable-keeper  is  not 
essential  tc  his  security  where  it  has  been  removed  from  his  stable  by 
fraud,  he  must  give  the  statutory  written  notice  to  the  owner  required, 
within  a  reasonable  time,  in  order  to  perfect  his  inchoate  lien,  and  with- 
out such  notice  he  cannot  regain  possession  of  the  animal  by  replevin. 
Kline  v.  Green,  83  Hun,  190;  s.  c,  64  N.  Y.  St.  Rep.  153,  31  N.  Y.  Supp. 
599. 

Notice  so  given  relates  back  to  the  time  of  a  demand  made  upon  him 
by  the  owner  for  the  animal.  Kline  v.  Green,  83  Hun,  190;  s.  c,  64 
N.  Y.  St.  Rep.  153,  31  X.  Y.  Supp.  599. 

Monuments,  tombstones. —  The  lien  which  was  given  upon  a  tomb- 
stone for  the  unpaid  price  by  Laws  1888,  chap.  543,  has  been  declared 
unconstitutional.  Brooks  v.  Tayntor,  17  Misc.  Rep.  534,  40  N.  Y.  Supp. 
445.     And  said  statute  has  been  repealed  by  Laws  1897,  chap.  418. 

Duration  of  such  liens. —  The  statute  relating  to  liens  on  monuments 
and  cemetery  structures  does  not  contain  any  provision  for  extending 
the  duration  of  such  liens,  as  may  be  done  by  judicial  order  in  the  case 
of  mechanics'  liens,  by  virtue  of  Laws  1897,  chap.  418,  §  16;  the 
notice  must  be  filed  with  the  superintendent  or  person  in  charge  of 
the  cemetery,  and  within  one  year  after  the  agreed  price  became  due, 
and  cannot  be  thereafter  filed  nunc  pro  tunc  under  an  order  of  the 
court.     Adler  v.  Lumley,  46  App.  Div.  229. 

Newspaper. —  An  agent  who  made  a  loan  to  a  newspaper,  and  was  to 
solicit  advertisements  for  it,  and  repay  himself  out  of  the  proceeds  to 
a  specified  amount  each  month, —  Held,  to  have  no  lien  upon  the  pro- 
ceeds as  against  a  receiver  of  the  corporation.  Commercial  Publishing 
Co.  v.  Beckwith,  36  App.  Div.  629. 

Piano  or  organ  sold  conditionally  is  exempt  from  lien.  Laws  1898, 
chap.  354,  p.  1019,  amending  Lien  Law  of  1897,  chap.  418,  §  115. 

Private  storage. —  There  is  no  lien  in  favor  of  one  giving  private 
storage  of  goods.  Merritt  v.  Peirano,  10  App.  Div.  563:  s.  c,  42  N.  Y. 
Supp.  97.  See  however  The  Buffalo  Dry  Dock  Co.  v.  Ladenburg,  19 
App.  Div.  35. 


(j8      Jurisdiction  and  General  Powers.      §  1,  Subd.  11. 

Safe  sold  conditionally  is  exempt  from  lion.  Laws  1898,  chap.  354, 
p.  1019,  amending  Lien  Law  of   1897,  chap.  41S,  §   115. 

Sales  of  property  to  satisfy  liens. — -As  to  the  notice  of  sale  required 
to  he  given  to  the  owner,  and  the  advertisement  of  the  sale,  see  Laws 
1899,  chap.  369,  p.  793. 

Stallions;  liens  for  service  of. —  Amended  Laws  1902,  chap.  351. 

Statutory  liens. —  General  Lien  Law  of  1897,  chap.  418,  as  amended 
by  Law-  L89S,  chap.  354,  and  Laws  1899,  chap.  369,  SS  81  and  82, 
p.  793,  chap.  380,  §  71,  p.  834,  and  chap.  465,  §  74,  p.  942,  are  acts  in 
relation  to  all  liens  now  allowed  by  statutory  law  upon  chattels. 

Storage  enforcement. —  The  bailee  of  household  good-  tor  storage  has 
nc  right  to  sell  the  same  for  unpaid  charges  without  notice  to  the 
owner  of  the  goods,  and  the  requirements  of  Laws  1899,  chap.  369, 
amending  Laws  1897,  chap.  418,  §  81,  must  be  complied  with.  Robin- 
son v.  Wappans,  34  Misc.  Rep.   199. 

Warehouse  liens. —  See  Laws  1897,  chap.  418,  §  73.  (See  Sage  v. 
Gittner,  11  Barb.  120;  Stallman  v.  Kimberly,  53  Hun,  531;  Bauman 
v.  Jefferson,  4  Misc.  Rep.  147;  The  Buffalo  Dry  Dock  Co.  v.  Ladenburg, 
19  App.  Div.  35. 

Warehouseman. —  A  mere  volunteer,  under  no  obligation  as  a  ware- 
houseman, who  receives  the  temporary  custody  of  chattels,  has  no  lien 
upon  them  for  storage,  in  the  absence  of  any  agreement,  though  he  may 
be  entitled  to  compensation  for  caring  for  them,  as  upon  a  quantum 
meruit.  Lyungstrandt  v.  William  Haaker  Co.,  16  Misc.  Rep.  387,  73 
X.  Y.  St.  Rep.  808,  38  N.  Y.  Supp.   129. 

Workingman's  lien. —  Workman  repairing  chattel  necessary  for  its 
preservation,  has  such  a  lien  for  his  charges  that  he  may  retain  posses- 
sion of  the  chattel,  even  against  a  prior  mortgagee.  Scott  v.  Delahunt, 
5  Lans.  372. 

Unless  the  property  has  been  enhanced  in  value  by  the  work  done,  no 
lien  can  be  acquired  thereon,  unless  by  special  contract.  De  Vinne  v. 
h'ianhard,  9  Daly,  406. 

A  workman  employed  to  take  away  materials  and  manufacture  cloth- 
ing from  them  has  a  lien  upon  them  for  his  work,  and  may  detain  them 
until  the  lien  is  discharged.  Kafka  v.  Levensohn,  18  Misc.  Rep.  202,  41 
X.  Y.  Supp.  368. 

Where  part  of  the  goods  are  stolen  from  him  without  his  fault,  his 
lien  attaches  to  the  residue  in  his  hands  for  the  work  done  thereon. 
Kafka  v.  Levensohn,  18  Misc.  Rep.  202,  41  N.  Y.  Supp.  368. 

11.  An  action  to  enforce  a  mechanic's  lien  on  real  prop- 
erty in  which  the  court  shall  have  power  to  render  judgment 
for  the  sum  due,  and  to  declare  the  amount  a  valid  lien  against 
the  interest  of  the  defendant  in  the  property  described  in  the 


§  1,  Sued.  11.     Jurisdiction  and  General  Powers.      69 

complaint,  at  the  time  of  the  filing  of  the  lien,  where  the 
amount  does  not  exceed  five  hundred  dollars,  but  said  court 
cannot  render  judgment  for  the  foreclosure  and  sale  of  the 
property. 

Notes  to  section  i,  subdivision  n. 

This  subdivision  was  not  contained  in  the  Charter  of  1897,  as  amended 
in  1901,  but  this  court  had  jurisdiction  to  enforce  mechanics'  liens 
as  provided  by  Laws  1897,  chap.  419,  which  was  an  amendment  to 
the  Code  of  Civil  Procedure,  by  adding  a  new  chapter  and  also  sections 
3399,  3404  to  3414. 

There  are  no  provisions  for  any  particular  procedure  to  enforce  a 
mechanic's  lien  prescribed  in  this  act.  Formerly  the  return  day  in 
such  a  case  was  not  less  than  twelve  nor  more  than  twenty  days,  and 
service  by  publication  was  provided  for  by  Code  Civ.  Proc,  §§  3404, 
3405,  and  340G,  which  sections  were  addled  to  said  Code  by  Laws  1897, 
chap.  419,  p.  547,  and  remain  unrepealed,  but  they  have  been  doubtless 
superseded  by  the  provisions  of  this  act,  sections  32,  33,  34,  37,  and 
others  leaving  the  practice  in  such  action  the  same  as  in  any  other 
action  in  this  court. 

Proceedings  for  the  enforcement  of  mechanics'  liens  on  real  property 
are  to  be  found  in  Code  Civ.  Proc,  tit.  Ill,  added  by  Laws  1897, 
chap.  419,  §§  3398  to  3419,  and  include  "  Action  in  a  court  not  of 
record." 

Complaint  in  mechanic's  lien  action;  requisites  of,  are  prescribed  in 
Code  Civ.  Proc,  §  3404,  added  to  said  Code  by  Laws  1897,  chap.  419, 
p.  546,  left  unrepealed  by  this  act.  These  requisites  are  as  follows : 
The  complaint  must  set  forth  substantially  the  facts  contained  in 
the  notice  of  lien,  and  the  substance  of  the  agreement  under  which 
the  labor  was  performed  or  the  materials  were  furnished. 

Costs  and  disbursements  same  as  allowed  in  other  actions  in  this 
court.     Code  Civ.  Proc,  §  3411. 

Equitable  action. —  This  court  has  jurisdiction.  The  provisions  of 
the  Mechanics'  Lien  Law  in  courts  not  of  record  regulating  the  pro- 
cedure are  entirely  different  from  that  of  this  court.  In  this  court 
there  can  only  be  recovery  of  a  money  judgment  and  for  the  issuing 
of  &n  execution  to  sell  the  title  and  interest  of  the  owner  in  the 
premises,  and  not  the  property  itself.  Kotzen  v.  Nathanson,  33  Misc. 
Rep.  299,  followed  in  Eadie  v.  Waldron,  64  App.  Div.  424. 

Judgment;  execution;  sale. —  Although  this  court  cannot  render  judg- 
ment for  the  foreclosure  and  sale  of  the  property,  it  can  sell  the  right, 
title,  and  interest  of  the  owner  in  the  premises,  upon  which  the  lien 
set  forth  in  the  complaint  existed  at  the  time  of  filing  the  notice  of 
lien.     Code  Civ.  Proc,  §  3408. 

Trial  is  the  same  as  other  issues  triable  in  this  court.  Code  Civ. 
Proc,  §  3407. 


70      Jurisdiction   and  General  Powers.     §  1,  Sued.  12. 

12.  A  summary  proceeding  under  title  two  of  chapter 
seventeen  of  the  code  of  civil  procedure  to  recover  possession 
of  real  property  which,  or  a  portion  of  which,  is  situated 
within  the  district  wherein  the  application  for  such  recovery 
is  made.  Such  proceeding  may  be  tried  with  or  without  a 
jury,  which  may  be  demanded  by  any  party  thereto.  The 
court  in  either  case  has  power  upon  application,  to  allow  the 
petition  or  answer  to  be  amended,  at  any  time,  if  substantial 
justice  will  be  promoted  thereby  and  the  rights  of  the  parties 
have  not  been  impaired  by  reason  of  the  defective  pleading, 
to  direct  or  set  aside  a  verdict,  and  to  grant  or  deny  a  motion 
for  a  new  trial,  and  an  appeal  may  be  taken  therefrom. 

Notes  to  section  i,  subdivision  12. 

This  subdivision  is  the  same  as  section  12  in  the  Charter  of  1897.  as 
amended  in  1901,  with  the  eddition  of  powers  to  set  aside  a  verdict,  or 
to  grant  or  deny  a  new  trial,  and  allowing  an  appeal.  It  was  formerly 
a  part  of  section  1357  of  the  Consolidation  Act  (Laws  1882,  chap.  410), 
which  was  superseded  by  subdivision  12  of  section  1364  of  the  Charter 
of  1897,  and  was  continued  in  -force  in  and  by  sections  1369  and  1428 
of  said  Charter. 

Sections  1357,  1358,  1359,  and  1360  of  the  Consolidation  Act  relating 
to  "  Summary  Proceedings,"  were  all  repealed  by  this  act,  and  sub- 
division  12  of  section  1  thereof    enacted  in  their  place  and  stead. 

By  chapter  17  of  the  Code  of  Civil  Procedure,  entitled  "  Certain 
Special  Proceedings  Instituted  without  Writ,"  these  proceedings  are 
"  Special  Proceedings."  See  §§  3334  and  3343,  subd.  20,  and  §  1688  of 
said  Code. 

Title  II  of  chapter  17  of  the  Code  of  Civil  Procedure,  mentioned  in 
this  section  is  entitled  "  Summary  Proceedings  to  Recover  the  Posses- 
sion of  Real  Property,"  and  is  embraced  within  section  2231  to  section 
2265,  both  inclusive.  These  sections  contain  the  law  and  practice 
relating  to  summary  proceedings  for  nonpayment  of  rent  and  for  hold- 
ing over  after  a  tenant's  term  expires;  to  the  removal  of  a  person 
holding  over  after  land  has  been  sold;  to  the  removal  of  a  person 
occupying  and  using  property  as  a  bawdy-house  or  house  of  assignation 
for  lewd  persons,  and  to  forcible  entry  and  detainer  proceedings. 

The  law  and  practice  in  these  "Special  Proceedings"  requires  a 
work  in  itself,  especially  as  it  is  composed  of  an  entire  title,  contain- 
ing thirty-five  sections  of  the  Code  of  Civil  Procedure.  We  have  there- 
fore deemed  it,  impracticable  to  make  further  provisions  in  this  as  in 
former  editions,  leaving  the  practitioner  to  "  McAdam's  Landlord  and 
Tenant,"   vol.   ''>.   '"Summary  Proceedings  to  Recover  the  Possession  of 


§  1,  Subd.  13.     Jurisdiction  and  General  Powers.      71 

Lands  and  Tenements  within  the  State  of  New  York,  with  Forms;  "  and 
to  his  preceding  works  on  this  subject,  which  are  a  lasting  monument 
to  the  legal  learning  and  ability  of  this  gifted  and  lamented  lawyer 
and  judge. 

Court  may  direct  verdict;  when.     See  §  252. 

Motion  to  set  aside  verdict,  or  vacate  or  amend  judgment.    See  §  254. 

13.  An  action  for  damages  for  fraud  or  deceit  where  the 
damages  claimed  do  not  exceed  five  hundred  dollars. 

Notes  to  section  i,  subdivision  13. 

No  explanatory  or  other  reference  is  made  to  this  subdivision  by 
the  commissioners  who  drew  this  act  and  reported  it  to  the  Legislature. 
It  is  the  same  as  subdivision  11  of  the  Charter  of  1897,  as  amended  in 
1901,  with  a  very  important  exception.  The  former  subdivision  limited 
the' action  to  fraud  or  deceit  about  "  personal  property."  which  limita- 
tion is  eliminated  from  the  present  action,  thus  leaving  it  applicable 
to  an  action  for  fraud  and  deceit  about  real  property. 

Prior  to  the  Charter  of  1897,  section  13(34,  subdivision  11.  the  Dis- 
trict Courts  had  no  jurisdiction  in  an  action  for  fraud  or  deceit. 
Vide,  §  1285,  subds.  1  to  13,  Consolidation  Act  (Laws  1882,  chap.  410). 

Agent  and  principal  are  jointly  liable  for  the  agent's  deceit  and 
fraudulent  representations.     Cunningham  v.  Wathen,  14  App.  Div.  553. 

Checks  drawn  without  funds  to  meet  them. —  One  who  draws  a  check 
on  a  bank  where  he  has  no  funds  to  meet  it  is  guilty  of  a  fraud  on  the 
person  who  parts  with  money  on  the  faith  thereof.  Sieling  v.  Clark, 
18  Misc.  Rep.  464. 

Id.;  withdrawal  of  deposit. —  If  the  drawer  of  a  check  withdraws 
funds  which  he  had  in  the  drawee's  hands  when  he  drew  the  check,  and 
thereby  defeats  its  payment,  he  commits  a  fraud  on  the  holder.  Sieling 
v.  Clark,  18  Misc.  Rep.  464. 

Deceit;  when  action  lies. —  An  action  for  deceit  will  not  lie  against 
a  buyer  of  goods  who  has  falsely  stated  his  financial  condition  to  a 
mercantile  agency,  at  the  suit  of  the  seller  who  relied  upon  the  rating 
given  to  the  buyer  by  the  agency,  unless  the  false  statements  themselves 
were  in  some  way  communicated  to  the  seller  and  he  made  the  sale 
relying  upon  them.     Tindle  v.  Birkett,  57  App.  Div.  450. 

If  a  firm  of  buyers  represented  the  facts  stated  by  them  to  be  true 
to  their  personal  knowledge,  with  a  view  of  inducing  the  sellers  to 
believe  them,  and  they  were  believed,  relied  upon,  and  acted  upon  by 
the  sellers,  and  the  statements  were  not  true,  the  buyers  are  chargeable 
with  deceit  precisely  as  if  the  statements  were  made  with  knowledge 
of  their  falsity.     Schoeman  v.  Chamberlin,  55  App.  Div.  351. 

Elements  of  fraud. —  The  elements  of  an  action  for  fraud  are  repre- 
sentations of  falsity,  scienter,  deception,  and  injury.  Wessels  v.  Carry 
15   App.  Div.  360. 


72      Jurisdiction  and  General  Powers.     §  1,  Subd.  13. 

Evidence  of  fraud. —  In  an  action  to  recover  goods  whose  sale  was 
alleged  to  have  been  procured  by  false  representations  of  solvency, 
evidence  of  transactions  of  the  vendees  with  their  creditors  before  and 
after  the  sale  by  plaintiffs  and  up  to  the  time  of  failure  is  admissible  to 
show  the  existence  of  a  general  scheme  of  fraud.  Hummer  v.  Oppcn- 
heim.   19  Misc.  Rep.   605,  606. 

False  representations;  what  must  he  shown. —  In  an  action  for  an 
installment  of  rent,  defendant  interposed  a  counterclaim  alleging  that 
plaintiff,  to  induce  defendant  to  make  the  lease  at  the  rental  of 
$12,000  a  year,  represented  that  the  previous  tenant  had  paid  that 
sum;  that  such  representations  were  false,  and  were  known  to  plaintiff 
to  be  false;  that  defendant  relied  upon  them  and  was  deceived  by  them, 
and  asked  that  the  lease  shall  be  canceled  and  delivered  up.  Held, 
that  to  entitle  defendant  to  recover  upon  its  counterclaim  it  was  neces- 
sary for  it  to  establish  the  representations  made;  their  falsity;  the 
knowledge  of  their  falsity;  the  intention  to  deceive,  and  the  fact  that 
the  defendant  relied  upon  them  and  that  it  suffered  damage  thereby. 
Powell  v.  Linde  Co.,  58  App.  Div.  2G1,  68  N.  Y.  Supp.  1070;  appeal 
dismissed  in  167  N.  Y.  617;  Brackett  v.  Griswold,  112  N.  Y.  454.  See 
also  Chisholm  v.  Eisenhuth,  69  App.  Div.  134. 

Misrepresentation. —  A  misrepresentation  to  become  the  basis  of 
fraud  must  be  of  an  existing  fact,  and  not  a  promise.  Wheeler  v.  Mow- 
ers, 16  Misc.  Rep.  143;  s.  c",  38  N.  Y.  Supp.  950. 

A  "  misrepresentation  with  intent  to  deceive "  is  the  equivalent  of 
actual  fraud,  and  a  mistake  or  innocent  misrepresentation  is  enough 
to  justify  a  rescission  of  the  contract  made  in  reliance  upon  it.  Foster 
v.  Wilhusen,  14  Misc.  Rep.  520;  s.  c.,  70  N.  Y.  St.  Rep.  701,  35  N.  Y. 
Supp.   1083. 

Promise. —  The  failure  on  the  part  of  a  lessor  to  make  promised  im- 
provements is  not  a  fraud.  Lynch  v.  Sauer,  16  Misc.  Rep.  1 ;  s.  e.,  73 
N.  Y.  St.  Rep.  269,  37  N.  Y.  Supp.  666. 

Proof  of  fraud. —  A  charge  of  fraud  in  a  civil  action,  although  in  the 
nature  of  a  crime,  need  not  be  proved  beyond  a  reasonable  doubt,  but 
may  be  established  by  facts  necessarily  tending  to  establish  probability 
of  guilt.     Summers  v.  Oppenheim,  19  Misc.  Rep.  605. 

A  person  charged  with  making  false  representations,  who  admits  that 
the  representations  charged  to  have  been  made  were  made,  is  not  bound 
to  prove  them  to  be  true.  The  fact  that  statements  are  made  by  one 
party  and  assented  to  by  the  other,  and  that  both  parties  are  mistaken, 
does  not  establish  an  intent  to  falsify  on  the  part  of  the  party  making 
the  statements,  especially  where  there  are  an  estimate  of  the  cost  of 
Avork  to  be  done.     Sterling  v.  Boll,  10  App.  Div.  290. 

False  representations  as  to  the  incumbrances  upon  goods  sold  cannot 
be  proved  by  testimony  of  witness  as  to  statements  as  to  indebted- 
ness made  to  him  by  the  bookkeeper  of  the  alleged  creditor.  Gage  v. 
Peetsch,  19  Misc.  Rep.  369. 


§  1,  Subd.  14.     Jurisdiction  and  General  Powers.      73 

Proof  of  knowledge. —  A  complaint  alleging  that  to  induce  plaintiff 
to  purchase  a  horse  defendant  falsely  and  fraudulently  represented  it 
worth  $120,  and  warranted  it  sound  and  free  from  disease;  that  it 
was  not  sound  and  not  worth  that  price,  hut  had  a  disease  well  known 
to  defendant,  is  an  action  for  deceit,  and  the  defendant's  knowledge 
of  the  alleged  unsoundness  must  be  proved.  A  recovery  cannot  be  had 
without  such  proof,  by  construing  the  complaint  as  one  for  a  false 
warranty.     Moore  v.  Noble,  36  How.  Pr.  385;  s.  c,  53  Barb.  425. 

Relation  of  parties. —  The  presumption  of  undue  influence,  or  unfair- 
ness arising  from  the  confidential  relations  of  the  parties  to  a  con- 
tract, does  not  arise  from  the  ordinary  and  friendly  relations  between 
relatives  intimately  associated  in  business  affairs.  The  question  as 
to  parties  so  situated  is  one  of  fact  depending  upon  the  circumstances 
in  each  case.  Doheny  v.  Lacy,  1G8  N.  Y.  213,  61  N.  E.  255,  affg.  42 
App.  Div.  218. 

Remedies  against  fraud. —  A  vendee  upon  discovery  of  a  fraud  in  the 
sale  may  elect  to  cancel  the  contract  and  recover  back  the  purchase 
price,  or  the  value  of  the  property  taken  or  lost  to  him  by  reason  of 
the  alleged  fraud.     Gage  v.  Peetsch,  19  Misc.  Pep.  369. 

A  person  who  has  been  induced  by  fraudulent  representations  to 
become  the  purchaser  of  property  has,  upon  discovery  of  the  fraud, 
three  remedies  open  to  him.  First,  he  may  rescind  the  contract  abso- 
lutely and  sue  to  recover  the  consideration,  in  which  case  he  must 
first  restore  or  offer  to  restore  the  property;  second,  he  may  bring 
action  to  rescind;  third,  he  may  retain  what  he  has  received  and  bring 
an  action  at  law  to  recover  the  damages  sustained,  in  which  case  the 
measure  of  his  recovery  is  the  difference  between  the  value  of  the  article 
sold  and  what  it  should  be  according  to  the  representations.  Gros- 
jean  v.  Galloicay,  64  App.  Div.  547. 

Fraudulent  sale. —  Where  a  sale  upon  credit  is  induced  by  repre- 
sentations of  the  buyer,  the  seller  has  the  right  either  to  disaffirm 
the  sale  and  recover  back  the  goods  or  to  waive  the  tort  and  pro- 
ceed at  once  for  the  purchase  price,  affirming  the  sale  but  disaffirm- 
ing the  credit,  and  an  offer  of  the  buyer  to  return  the  goods  upon 
receipt  of  his  note  given  for  the  price  will  not  bar  the  latter  action. 
Heiloronn  v.  Eerzog,  165  N.  Y.  98,  58  N.  E.  759. 

14.  An  action  to  recover  damages  for  a  personal  injury, 
or  for  loss  of  services  or  for  medical  or  other  necessary  ex- 
penses occasioned  thereby,  or  an  injury  to  property,  where 
the  sum  claimed  does  not  exceed  five  hundred  dollars,  ex- 
cepting however,  actions  to  recover  damages  for  an  assault, 
battery,  malicious  prosecution,  false  imprisonment,  libel, 
slander,  criminal  conversation,  seduction,  or  loss  of  society 
of  husband  or  wife. 


74      Jurisdiction  and  General  Powers.     §  1,  Subd.  14. 

Notes  to  section  i,  subdivision  14. 

This  subdivision  enlarges  the  jurisdiction  in  actions  for  damages 
for  personal  injuries  to  actions  for  loss  of  services,  or  for  medical  or 
other  necessary  expenses  occasioned   thereby. 

It  is  taken  from  subdivision  2  of  section  130-4  of  the  Charter  of  1897, 
as  amended  in  1901,  and  is  substantially  similar  except  as  stated. 
Formerly  it  was  subdivision  2  of  section  1285  of  the  Consolidation 
Act  (Laws  1882,  chap.  410),  and  as  amended  by  the  Charter  of  lS'JT, 
the  nonjurisdictional  subdivision  2  of  section  1280  of  the  Consolidation 
Act  was  added  to  it. 

Personal  injury  is  denned  by  section  3343,  subdivision  9  of  the  Code 
of  Civil  Procedure,  of  all  of  which  this  court  has  not  jurisdiction,  ex- 
cept of  those  meant  by  the  last  line,  reading,  "  or  other  actionable 
injury  to  the  person,  either  of  the  plaintiff  or  of  another." 

Injury  to  property  is  denned  by  section  3343,  subdivision  10  of  the 
Code  of  Civil  Procedure:  ''An  '  injury  to  property'  is  an  actionable  act, 
whereby  the  estate  of  another  is  lessened,  other  than  a  personal  injury, 
or  the  breach  of  a  contract." 

Abuse  of  horse. —  In  an  action  for  damages  for  abuse  of  a  horse,  which 
defendant  hired,  and  returned  next  day  in  a  dying  condition, — Held, 
that  a  direction  of  a  verdict  for  defendant  should  be  reversed.  Whalen 
v.  .V.  Y.  d  Htaten  Island  Electric  Co.,  03  App.  Div.  015. 

Careless  driving. —  The  act  of  the  driver  of  defendant's  carriage, 
standing  on  the  west  side  of  the  street  with  the  horses  toward  the 
south,  in  suddenly  turning  so  as  to  go  north  on  the  same  side  of  the 
street,  instead  of  moving  down  and  crossing  over  to  the  east  side  to 
go  north,  and  the  conduct  of  plaintiff  coming  south  on  a  bicycle  at 
the  rate  of  five  or  six  miles  an  hour,  ringing  his  bell,  and  struck  by  the 
pole  of  the  carriage.  Held  to  present  question  of  fact  for  the  jury. 
Hill  v.  Moebus,  50  App.  Div.   354. 

Collision  between  car  and  vehicle. —  Dismissal  of  the  complaint  in  an 
action  for  damages  against  a  street  railroad  company,  whose  car  ran 
into  plaintiff's  wagon  as  he  was  attempting  to  cross  the  railroad  track, 
he  having  started  to  do  so  when  the  car  was  nearly  a  block  away. 
Held  error.     Ludecke  v.  Metropolitan  Street  Ry.  Co..  32  Misc.  Rep.  035. 

Contributory  negligence. —  Whether  or  not  a  plaintiff  is  guilty  of  con- 
tributory negligence,  as  a  general  proposition,  is  a  question  of  fact 
to  be  determined  by  the  jury,  and  it  is  only  where  it  clearly  appears 
from  the  uncontradicted  evidence  that  the  plaintiff  has  by  his  own  act 
contributed  to  the  injury  he  has  received,  that  the  court  is  justified 
in  determining  that  question  as  one  of  law.  Cohen  v.  Metropolitan 
Street  Ry.  Co.,  03  App.  Div.   105. 

Crossing  street. —  A  crirl  thirteen  years  old.  struck  by  a  horse  car  as 
she  crossed  an  avenue  after  waiting  for  a  covered  wagon  to  pass,  with- 
out thereafter  locking  for  the  approach  of  a  car  though  she  had  looked 


■§  1,  Subd.  14.     Jurisdiction  and  General  Powers.      75 

before  the  wagon  passed, — Held  not  to  appear  free  from  contributory 
negligence.  Biederman  v.  Dry  Dock,  East  Broadway,  etc.,  R.  R.  Co.,  54 
App.  Div.  291. 

Falling  bricks. —  In  an  action  brought  by  a  tenant  of  property  adja- 
cent to  defendant's,  to  recover  for  bodily  injuries  received  from  the 
fall  of  bricks  from  defendant's  chimney,  on  a  part  of  the  premises, 
rented  by  him  to  another,  into  the  tenant's  yard, — Held,  that  a  non- 
suit was  error,  though  there  was  evidence  that  plaintiff  had  previous 
knowledge  that  the  chimney  was  defective.  Kaiser  v.  Washburn,  55 
App.  Div.   159. 

Horse  and  wagon. —  Defendant  forcibly  ran  the  plaintiff's  horse  and 
wagon  from  the  railroad  track,  breaking  his  wagon  and  seriously  injur- 
ing his  horse.  Held,  that  tne  act  was  clearly  unlawful,  and  gave  the 
plaintiff  a  right  of  action  for  his  damages.  Fettrich  v.  Dickenson,  22 
How.  Pr.  248. 

Imputed  negligence. —  The  degree  of  care  required  of  one  riding  with  a 
driver  over  whom  he  has  no  express  control,  considered.  Morris  v. 
Metropolitan  Street  Ry.  Co.,  63  App.  Div.  78. 

Injury  to  property  and  injury  to  person,  recovery  upon  one  not  a  bar 
to  recovery  en  the  other. —  Recovery  for  an  injury  to  property  not  a  bar 
to  another  action  for  injury  to  the  person  caused  by  the  same  act 
of  negligence.  An  injury  to  tne  person  and  an  injury  to  property, 
although  resulting  from  the  same  tortious  act,  constitute  different 
causes  ox  action,  and  a  judgment  for  damages  to  property  recovered 
in  one  court,  and  the  satisfaction  thereof,  is  not  a  bar  to  the  main- 
tenance of  an  action  for  an  injury  to  the  person,  in  another  court, 
arising  from  the  same  act.  Reilly  v.  Sicilian  Asphalt  Paving  Co.,  170 
N.  Y.  40,  revg.  s.  c.  31  App.  Div.  302. 

Jurisdiction. —  Where  an  action  for  wrongful  injury  to  personal 
property  is  commenced  by  the  service  of  a  summons,  accompanied  by 
an  order  of  arrest,  jurisdiction  does  not  depend  upon  the  sufficiency 
of  the  affidavit  upon  which  the  order  of  arrest  was  made,  but  upon 
the  service  of  the  summons,  and  it  still  remains  though  the  order  was 
set  aside  as  improperly  granted.     McNeary  v.  Chase,  30  Hun,  491. 

Landlord  and  tenant ;  agreement. —  An  action  for  damages  for  per- 
sonal injuries  by  a  tenant  against  his  landlord  cannot  arise  out  of  a 
breach  of  the  landlord's  agreement  to  make  repairs.  Folsom  v.  Parker, 
31   Misc.  Rep.  348,  64  N.  Y.  Supp.  263. 

Id.;  ceiling;  falling  of,  in  tenant's  apartment;  notice  of  defect; 
promise  to  repair. —  Landlords  are  not,  in  the  absence  of  an  agreement 
to  repair,  liable  to  a  tenant  for  the  defective  condition  of  premises 
let  to  the  tenant  for  his  exclusive  use,  unless  the  defect  is  such  that 
it  amounts  to  a  nuisance  at  the  time  when  the  lease  was  made.  A 
child  of  a  monthly  tenant,  living  with  his  father,  cannot  maintain 
an  action  for  negligence  against  the  landlords  of  premises  for  injuries 
received  from  the  fall  of  a  portion  of  the  ceiling  in  the  apartments  of 


76      .1 1  Kisi.icTioN   and  General  Powees.     §  1,  Subd.  14. 

the  father,  and  this,  although  the  defect  was  brought  to  the  attention 
of  the  landlords,  and  they,  through  their  janitress  of  the  building, 
promised  to  repair  it,  as  the  damages  are  too  remote.  Miller  v. 
Rinaldo,  -\    .Misc.  Rep.  470,  revg.  s.  c,  20  Misc.  Rep.  714. 

A  landlord  who  has  not  covenanted  to  make  repairs  is  not  liable  to  a 
tenant,  as  for  a  breach  of  contract  for  injuries  which  she  received 
from  the  fall  of  the  ceiling  of  a  sleeping  apartment,  which  was  under 
her  exclusive  control ;  and  where  the  tenant  remains  in  occupation,  to 
her  personal  injury,  after  knowledge  of  the  defect,  after  complaint 
made  to  the  agent  of  the  premises  ( who  reassures  her  as  to  the  danger, 
and  promises  to  have  the  ceiling  fixed,  and  after  her  subsequent  refusal 
to  pay  him  rent  because  of  the  danger,  her  contributory  negligence  bars, 
her  right  to  recover  of  the  landlord  damages  for  her  injuries,  under 
allegations  that  he  has  been  negligent.  Schwartz  v.  Apple,  21  Misc. 
Rep.  513. 

In  an  action  against  a  landlord,  brought  by  the  wife  of  a  tenant,  for 
injuries  received  from  the  fall  of  a  ceiling,  where  it  was  not  shown  that 
defendant  had  agreed  to  make  repairs,  or  knew  or  had  reason  to  know 
the  ceiling  was  unsafe, — Held,  that  a  recovery  could  not  be  had. 
Kennedy  v.  Fay,  31  Misc.  Rep.  776,  65  N.  Y.  Supp.  202. 

Id.;  water. —  Damage  sustained  from  the  leaking  of  water  pipes- 
must  be  borne  by  the  tenant,  where  the  landlord  does  not  covenant  t6 
repair,  and  the  lease  exempts  him  from  such  damage.  Sown  v.  Weiss- 
man,  29  Misc.  Rep.  622,  61  N.  Y.  Supp.  78. 

Medical  expenses. —  In  an  action  for  bodily  injuries,  plaintiff  may 
prove  his  medical  expenses  under  an  allegation  that  he  "  was  put,  and 
will  still  be  put,  to  much  expense  in  the  treatment  of  his  said  injuries.'' 
McC ready  v.  Staten  Island  R.  R.  Co.,  51  App.  Div.  338,  64  X.  Y.  Supp. 
996. 

Negligence;  railroad;  assault  and  battery. —  While  this  court  has  no 
jurisdiction  in  an  action  for  assault  and  battery,  it  has  jurisdiction 
in  an  action  to  recover  damages  for  personal  injuries  growing  out  of 
defendant's  (railroad  company)  neglect  to  fulfill  the  duty  of  protection 
which  ic  owes  to  its  passengers.  Hart  v.  Met.  R.  R.  Co.,  65  App.  Div. 
493. 

The  rule  that  it  is  negligence  for  a  person  to  attempt  to  cross  a  public 
thoroughfare  ahead  of  vehicles  of  any  kind,  upon  a  miscalculation  of 
injury  if  such  attempt  be  made,  considered.  Johnson  v.  Rochester  Ry. 
Co.,  61  App.  Div.  12. 

Dumb-waiter. —  The  use.  by  a  Aendor  of  ice,  of  a  dumb-waiter  in  an 
apartment-house,  that  he  knew  to  be  in  a  dangerous  condition. — Held  to 
be  contributory  negligence.     McCuire  v.  Board,  58  App.  Div.  388. 

Elevator. —  The  lessee  of  a  building,  who  subleases  to  various  tenants 
and  maintains  a  freight  elevator  for  their  common  use.  is  to  exercise 
reasonable  care  to  see  that  the  elevator  is  safe  for  the  use  to  which 


§  1,  Subd.  14.     Jurisdiction  axd  General  Powers.      77 

it  is  to  be  applied,  and  owes  his  duty  to  an  expressman  engaged  in 
the  business  of  a  tenant.     Grifhahn  v.  Krcizer,  62  App.  Div.  413. 

Excavation  unguarded. —  Verdict  for  plaintiff  in  an  action  for  dam- 
ages against  a  street  railroad  company  and  its  contractor,  for  injuries 
received  by  falling  into  a  hole  in  the  street,  four  or  five  feet  outside 
the  railroad  track,  set  aside  for  failure  of  proof  that  the  condition  of 
the  street  arose  from  any  act  of  either  of  the  defendants,  though  they 
had  previously  been  engaged  in  work  along  the  line  of  the  road.  Moss 
v.  Crimmins,  51  App.  Div.  587. 

Exploding  siphon. —  Explosion  of  seltzer  water  sold  by  defendants 
to  plaintiff,  who  was  injured  in  consequence  of  the  explosion, — Held  to 
afford  no  cause  of  action  against  defendants  therefor.  Glaser  v.  Heitz, 
35  Misc.  Rep.  341. 

A  physician  who  undertakes  the  treatment  of  a  patient  is  bound  to 
exercise  not  only  the  skill  required,  but  also  care  and  attention  in 
attending  his  patient  until  he  notifies  the  patient  that  his  professional 
relations  are  terminated,  or  he  is  himself  discharged,  and  he  is  liable 
in  damages  to  a  patient  whom  he  leaves  after  setting  his  fractured 
arm,  and  does  not  attend  upon  again,  or  provide  attendance  for,  until 
after  the  fracture  has  improperly  healed.  Gerken  v.  Plimpton,  62  App. 
Div.  35. 

Protection  of  person  on  premises  of  another. —  The  presence  of  a 
mischievous  human  being  on  the  premises  may  constitute  the  danger 
against  which  the  law  requires  of  the  occupant  reasonable  care  to  pro- 
tect his  invitee.  A  customer  in  a  store  is  there  by  invitation  of  the 
merchant,  who  owes  him  the  duty  of  reasonable  care  to  secure  him 
against  injury,  as  well  from  the  misconduct  of  the  merchant's  em- 
ployees as  from  the  dangerous  condition  of  his  premises,  and  for 
breach  of  the  duty  with  consequent  injury  the  customer  may  maintain 
an  action  for  negligence  against  the  merchant.  Suinarton  v.  he 
Boutillier,  7  Misc.  Rep.  639. 

Roof. —  A  landlord,  required  under  the  lease  to  repair  the  roof  of  the 
demised  premises, — Held  liable  to  the  tenant  for  damage  caused  by 
water  admitted  through  leaks  after  insufficient  repairs.  Coleman  v. 
Central  Trust  Co.,  25  Misc.  Rep.  295,  54  N.  Y.  Supp.  561. 

A  landlord  who  undertakes  to  put  a  new  roof  upon  an  apartment- 
house,  and  while  the  work  is  in  progress  suffers  the  roof  to  be  in  such 
a  condition  that  the  property  of  tenants  is  injured  by  a  rainstorm,  is 
liable  in  damages,  though  he  employed  an  independent  contractor  to 
do  the  work.     O'Rourke  v.  Feist,  42  App.  Div.  136,  59  N.  Y.  Supp.  157. 

Servants;  negligence  of. —  Damages  may  be  recovered  for  personal 
injuries,  such  as  those  caused  by  negligence  of  one  of  defendant's 
servants.  Coulter  v.  The  American  Merchants'  Union  Ex.  Co.,  56  N.  Y. 
585,  revg.  s.  c,  5  Lans.  67. 

Stopping  runaway  horse. —  It  is  common  knowledge  that  in  a  thickly- 
populated  city  there  is  always  danger  to  life  and  property  from  a  run- 


78     Jurisdiction;   General  Powers     §  1,  Subds.  15,  1G. 

away  animal,  and  those  who  endeavor  to  stop  it,  even  in  the  absence 
of  any  immediate  pending  danger,  may  not  be  charged  with  con- 
tributory negligence  unless  their  act  can  be  characterized  as  rash  and 
reckless.  If  such  act  would  have  been  performed  by  a  person  exercising 
reasonable  care  and  prudence,  measured  by  the  circumstances,  it  is 
not  negligence  as  matter  of  law  and  a  case  is  presented  for  the  jury. 
Manthey  as  Admr.  v.  Rauenbeuhler,  71  App.  Div.  173. 

A  visitor  to  an  apartment-house  is  not  justified,  unless  under  some 
special  stress  of  circumstances,  in  proceeding  through  a  hallway  with 
which  he  is  unfamiliar,  when  it  is  so  dark  that  he  is  unable  to  see 
where  he  is  going  or  with  what  obstruction  he  may  meet.  Brugher  v. 
Buchtenkirch,  167  N.  Y.  153,  GO  N.  E.  420,  revg.  39  App.  Div.  502. 

15.  To  issue  or  vacate  a  requisition  to  replevy,  a  warrant 
of  attachment,  or  an  order  of  arrest ;  or  grant  or  vacate  a 
stay  of  execution,  or  of  proceedings,  within  the  limitations 
provided  in  this  act.    But  such  stay  shall  not  exceed  five  days. 

Notes  to  section  i,  subdivision  15. 

This  subdivision  is  new  under  the  head  of  jurisdiction,  the  powers 
therein  mentioned  were  formerly  given  by  section  1369  of  the  Charter 
of  1897,  as  amended  in  1901. 

In  connection  with  this  subdivision,  see  also  the  powers  granted  by 
subdivision  19. 

Notes  upon  the  subjects  mentioned  in  this  subdivision  will  be  found 
under  their  respective  heads  in  this  work. 

16.  To  render  judgment  in  an  action  or  make  a  final  order 
in  summary  proceedings  upon  confession  or  upon  the  con- 
sent of  both  parties. 

Notes  to  section  1,  subdivision  16. 

This  subdivision  is  substantially  the  same  as  subdivision  13  of  section 
1364  of  the  Charter  of  1897,  as  amended  in  1901.  The  reference  to 
title  6,  chapter  19  of  the  Code  of  Civil  Procedure  has  been  omitted. 
The  District  Courts  had  jurisdiction  to  enter  judgment  by  confession 
by  Laws  1857,  chap.  344,  §  3,  until  the  repealing  acts  of  1877,  chap. 
417,  subd.  4,  and  1880,  chap.  245,  subd.  33,  which  rendered  such  juris- 
diction doubtful  until  the  enactment  of  subdivision  13  of  section  1364 
of  the  Charter. 

In  a  note  to  title  VII,  "Judgments  and  Executions,"  article  1, 
"  Judgments,"  sections  248  to  251,  above  section  248.  the  commissioners 
on  revision  say  that  "sections  3010,  3011,  and  3012  of  the  Code  pro- 
vide for- judgments  by  confession,  or  by  offer  in  justices'  courts." 


§  1,  Subd.  17.     Jurisdiction  and  General  Powers.      79 

As  to  the  practice  on  "  Confession  of  Judgments,*'  see  those  sections. 

Appearance  and  consent. —  Appearance,  after  service  of  defendant 
with  summons  and  consent  to  enter  judgment,  is  not  entering  judgment 
by  confession.     Gates  v.  Ward,  17  Barb.  424. 

When  invalid. —  A  confession  of  judgment  to  one  who  is  simply  a 
surety  for  the  judgment  debtor  upon  certain  notes  that  have  been  given 
by  him,  where  the  confession  states  no  facts,  and  does  not  show  for 
what  cause  of  action  the  judgment  is  to  be  entered,  is  invalid. 

The  principal  is  not  indebted  to  his  surety  until  the  surety  has  paid 
the  debt  of  the  principal ;  and  it  cannot  be  said  that  a  principal  is  in- 
debted to  his  surety  for  notes  signed  by  the  latter,  although  the  surety, 
in  consideration  of  the  confession  of  judgment  for  the  amount  thereof, 
has  agreed  to  pay  such  notes.  The  language  required  by  subdivision 
3  of  section  3011  of  the  Code  of  Civil  Procedure,  requiring  an  affidavit 
in  case  of  such  confession,  "  stating  that  the  defendant  is  honestly  and 
justly  indebted  to  the  piaintiff  in  the  sum  specified  therein,"  etc.,  does 
not  comprehend  such  an  arrangement.  The  absence  of  any  special 
provision  for  the  entry  of  judgments  on  confession  in  justices'  courts 
for  contingent  liabilities,  and  the  requirements  of  the  affidavit,  speci- 
fied in  section  3011  of  the  Code  of  Civil  Procedure,  show  that  no  such 
.confessions  for  contingent  liabilities  were  contemplated  by  the  statute. 
Adams  v.  Tator,  57  Hun,  302. 

Where  parties  between  whom  no  action  is  pending  appear  of  their 
own  motion  before  a  justice  and  execute  papers  which  purport  to  be  a 
confession  of  judgment  but  which  do  not  comply  with  the  formalities 
prescribed  in  section  3011  of  the  Code  of  Civil  Procedure,  no  jurisdic- 
tion to  enter  judgment  is  thereby  conferred.  Rowe  v.  Pickham,  36 
App.  Div.  173. 

17.  Other  civil  actions  or  proceedings  of  which  district 
courts  in  the  city  of  New  York,  or  justices  of  the  peace  had 
jurisdiction  on  the  thirty-first  day  of  December,  eighteen 
hundred  and  ninety-seven,  except  such  as  shall  be  expressly 
excluded  by  this  act. 

Notes  to  section  i,  subdivision  17. 

This  subdivision  is  substantially  the  same  as  the  former  section  14 
of  the  Charter  of  1897,  as  amended  in  1901. 

By  section  364  all  laws  specified  in  the  schedule  annexed  to  this  act, 
in  force  on  the  1st  day  of  September,  1902,  are  repealed.  This  in- 
cludes all  of  the  Charter  acts  of  1897,  as  amended  in  1901,  from  sections 
1364  to  1429,  except  sections  1373,  1378,  1383.  1424  to  1427,  inclusive, 
which  were  not  repealed  or  disposed  of,  but  were  preserved  as  Charter 
enactments.    They  have  no  reference  to  "  actions  or  proceedings  "  men- 


80      Jurisdiction  and  General  Powers.     §  1,  Subd.  18. 

tioned  in  this  subdivision,  and  so,  with  the  sections  of  the  Consolida- 
tion Act  and  Code  of  Civil  Procedure,  none  of  them  left  unrepealed 
have  reference  to  actions  or  proceedings. 

Section  20  of  this  act  made  the  provisions  of  the  Code  of  Civil  Pro- 
cedure applicable  in  certain  cases,  but  that  has  reference  to  procedure, 
and  under  title  I,  "  Jurisdiction  and  General  Powers,"  it  has  reference 
to  the  general  powers  of  this  court,  and  not  to  jurisdiction  of  "  actions 
or  proceedings." 

Section  302  of  this  act,  "  Construction,"  declares  the  provisions  of 
this  act  are  not  new  enactments,  but  a  continuation  of  the  former  laws. 

As  by  section  2  of  this  act,  entitled  "  No  jurisdiction  in  certain  cases," 
only  two  classes  of  cases  are  excluded,  to  wit,  "  where  title  to  real 
property  comes  in  question,"  and  "  equity  jurisdiction,"  it  seems  that 
this  court  has  jurisdiction  of  every  other  action,  limited  however  by 
the  express  specifications  of  section  1,  subdivision  1  to  and  including  19. 

Action  against  joint  debtors. —  After  recovery  of  judgment  against 
those  served  an  action  may  be  maintained  against  those  not  served 
to  procure  a  judgment  charging  their  property  with  the  sum  remain- 
ing unpaid  upon  the  original  judgment.     See  §  208. 

Parties  who  may  be  joined. —  See  §  142. 

Application  of  this  article  to  defendants  jointly  liable  (there  is  no 
"article,"  it  is  title  II,  Actions;   Summons;   Parties).     See  §  43. 

18.  The  jurisdiction  extends  to  actions  against  the  city 
of  Xew  York,  a  domestic  corporation,  or  a  foreign  corpora- 
tion having  an  office  in  the  city  of  New  York,  an  adminis- 
trator or  executor  as  such,  where  the  amount  claimed  does 
not  exceed  five  hundred  dollars. 

Notes  to  section  i,  subdivision   18. 

This  subdivision  is  taken  from  the  preamble  of  section  1364  of  the 
Charter  of  1897,  as  amended  in  1P01,  and  adding  thereto  by  giving 
jurisdiction  against  an  administrator  or  executor  as  such  where  the 
amount  claimed  does  not  exceed  $500. 

It  must  be  observed  that  this  subdivision  does  not  read,  "The  juris- 
diction extends  to  actions  by  or  against  *  *  *  an  administrator  or 
executor  as  such,  but  only  against  an  administrator  or  executor."  By 
section  1365,  subdivision  2  of  the  Charter  of  1897,  as  amended  in  1901, 
it  is  provided  that  this  court  cannot  take  cognizance  of  any  civil  action 
where  the  action  is  brought  against  an  executor  or  administrator  as 
such,  and  the  amount  claimed  is  in  excess  of  fifty  dollars,  so  that  this 
court  had  jurisdiction  where  the  amount  claimed  was  less  than  fifty 
dollars. 


§  1,  Sued.  19,  §  2.     Jurisdiction;   General  Powers.     81 

We  suppose  that  as  jurisdiction  of  an  action  by  an  administrator 
or  executor  as  such  is  not  expressly  excluded,  that  they  can  come  into 
this  court  and  sue  in  a  representative  capacity  the  same  as  any  other 
person.  This  subdivision  does  away  with  the  numerous  vexatious  ques- 
tions as  to  jurisdiction  in  actions  against  foreign  corporations,  and 
allows  actions  to  be  brought  in  this  court  against  the  city  of  New 
York  which  formerly  could  only  be  brought  in  the  Supreme  Court.  See 
$§  155  and  156. 

19.  In  an  action  or  a  summary  proceeding,  to  direct  or 
set  aside  a  verdict,  vacate,  amend  or  modify  a  judgment  or 
final  order  rendered,  or  made  on  consent,  confession,  inquest 
or  trial,  grant  a  new  trial,  open  a  default,  or  in  a  proper 
case  grant  a  new  trial  on  the  ground  of  fraud  or  newly  dis- 
covered evidence. 

Notes  to  section  i,  subdivision  19. 

This  section  is  new,  comprising  in  a  condensed  form  the  powers  here- 
tofore exercised  by  this  court  or  any  justice  thereof  under  the  Con- 
solidation Act  (Laws  1882,  chap.  410),  section  1367,  except  the  power 
to  grant  a  new  trial  for  newly-discovered  evidence. 

In  connection  with  the  powers  given  by  this  subdivision,  see  also  the 
powers  granted  by  subdivision   15  of  this  section. 

Notes  upon  the  subjects  specified  in  this  subdivision  will  be  found 
under  such  subjects  in  this  work. 

In  subdivision  12  of  this  section,  in  relation  to  Summary  Proceed- 
ings, the  court  is  given  power  to  "  grant  or  deny  a  motion  for  a  new 
trial."  In  the  present  subdivision  19  the  power  of  the  court,  as  therein 
expressed,  is  limited  to  "  grant  a  new  trial,"  the  words  "  or  deny  "  are 
omitted. 

The  jurisdiction  or  power  is  however  perfected  by  section  255,  where 
it  Is  provided,  "  The  court  may  also  in  a  proper  case  grant  or  deny 
a  motion  for  a  new  trial  on  the  ground  of  fraud,  or  newly-discovered 
evidence." 

Court  may  direct  verdict,  when. —  See  §  252. 

Motion  to  set  aside  verdict,  or  vacate  or  amend  judgment. —  See 
§  254.  This  was  also  authorized  by  Laws  1896,  chap.  748.  See  also 
Douglass  v.  Seiferd,  18  Misc.  Rep.  188;  Krakower  v.  Davis,  20  Misc. 
Rep.  350;    Cohoell  v.  Devlin,  20  Misc.  Rep.  355. 

New  trial;   fraud  or  newly-discovered  evidence. —  See  §  255. 

§  2.  No  jurisdiction  in  certain  cases. —  The  said  municipal 
court  cannot  take  cognizance  of  any  civil  actions  in  either 
of  the  following  cases: 
6 


82  No  Jurisdiction  in  Certain  Cases.  §  2. 

Notes  to  section  2. 

The  preamble  to  this  section  is  the  same  as  the  preamble  in  section 
13G5  of  the  Charter  of  181)7,  as  amended  in  1901.  It  had  four  sub- 
divisions which  are  now  reduced  to  two.  It  will  be  observed  that  this 
court,  as  here  declared,  had  no  jurisdiction  in  only  two  class  of  cases, 
that  is  where  the  title  to  real  property  or  equity  comes  in  question, 
except    that  an   equitable  defense   is   allowed    in   summary   proceedings. 

This  section  has  reference  entirely  to  no  jurisdiction  in  civil  actions, 
and  does  not  mention  "  general  powers." 

There  are  many  subjects  and  matters  of  which  the  court  has  not 
jurisdiction.     The  following  are  the  most  important: 

Abatement. —  After  reversal,  and  remittal  to  this  court  for  a  new 
trial,  and  inquest  taken,  but  not  signed  by  the  judge,  nor  judgment 
entered,  the  action  abates,  and  jurisdiction  is  lost.  Trenton,  etc.  v. 
Smith,  26  Misc.  Rep.  822,  56  N.  Y.  Supp.  1075. 

Adjournment. —  On  appeal  the  loss  of  jurisdiction  because  of  illegal 
adjournments  must  appear  from  the  statement  in  the  record  of  the 
dates  of  the  adjournments,  and  of  the  party  at  whose  instance  they 
were  allowed,  in  order  to  be  available  as  a  ground  of  appeal  from  the 
judgment  rendered.  Chevra  Bnei  Israel  Anshe,  etc.  v.  Chevra  Bikur 
Cholin  Anshe,  etc.,  23  Misc.  Rep.  367,  51  N.  Y.  Supp.  236. 

Id.;  default;  judgment.-- This  court  has  no  power  to  render  judg- 
ment after  adjournment  in  the  interim  as  upon  defendant's  default  in 
answering.  Whitman,  etc.  v.  Hamilton,  27  Misc.  Rep.  198,  57  N.  Y. 
Supp.   760. 

Assault  and  battery;  negligence. —  This  court  has  no  jurisdiction  of 
an  action  for  assault  and  battery  by  the  conductor  of  the  defendant 
railroad  company,  negligence  on  the  part  of  defendant  or  breach  of 
contract  not  being  alleged.  Fisher  v.  Metropolitan  Street  Ry.  Co., 
30  Misc.  Rep.  430,  62  N.  Y.  Supp.  467. 

Attachment. —  The  mere  mailing  of  the  summons  and  attachment 
by  the  marshal,  without  posting  copies  of  the  same  on  the  door  of  de- 
fendant's residence,  does  not  give  a  justice  of  this  court  jurisdiction. 
and  where  such  service  is  made,  the  return  must  state  the  reason  for 
not  making  personal  service.  Shapiro  v.  Goldberg,  31  Misc.  Rep.  755, 
64  N.  Y.  Supp.  88. 

Attorney's  lien. —  This  court  is  an  inferior  court  of  limited  statutory 
jurisdiction,  has  no  such  equitable  control  over  its  judgment  as  em- 
powers it  to  enforce  an  attorney's  lien  thereon  by  vacating,  to  the 
extent  of  t-ne  lien,  a  satisfaction  executed  bj'  the  client,  and  issuing 
execution  for  the  lien.  People  ex  rel.  Moses  ,/affc  v.  Fitzpatrick,  35 
Misc.  Rep.  456. 

Consequential  damages. —  An  action  against  policemen  for  preventing 
the  removal  of  property  under  an  execution,  by  taking  the  marshal  to 
whom  it  was  intrusted  before  a  police  magistrate,  whereby  the  property 


§  2.  No  Jurisdiction  in  Certain   Cases.  83 

wa9  not  taken  and  the  proceeds  thereof  were  lost  to  the  judgment 
creditor, —  Held  to  have  been  improperly  entertained  since  the  justice 
might  be  assumed  to  have  found  that  the  cause  of  action  was  not  for 
an  injury  to  property  within  section  1304  of  the  Charter,  hut  at 
most  for  consequential  damages  and  not  within  the  jurisdiction  of  the 
court.     Kneustler  v.  Doyle,  30  Misc.  Rep.  442,  62  N.  Y.  Supp.  593. 

Decedent's  debts. —  As  to  whether  this  court  has  jurisdiction  of  an 
action  to  charge  the  next  of  kin  of  a  decedent  with  his  debts,  brought 
under  the  Code  of  Civil  Procedure,  section  lf-'37,  quaere?  Siegel  v. 
Cohen,  23  Misc.  Rep.  365;  s.  c,  51  N.  Y.  Supp.  318. 

Disputed  jurisdiction. —  The  fact  that  no  instance  is  adduced  of  the 
exercise  of  disputed  jurisdiction  affords  a  strong  argument  against  the 
existence  of  the  jurisdiction.    Roche  v.  McCaldin,  48  N.  Y.  St=  Rep.  695. 

Dismissal. —  If  plaintiff  fails  to  appear  on  the  adjourned  day,  and  the 
cause  is  dismissed  therefor,  the  justice  loses  jurisdiction  of  defendant, 
and  plaintiff  cannot  thereafter  restore  the  case  and  take  an  inquest. 
Abrams  v.  Fine,  28  Misc.   Rep.  533,  59  N.  Y.  Supp.  550. 

Decision  of  justice  not  in  time. —  Judgment  rendered  after  the  time 
limited  by  law  or  by  consent  of  the  parties  for  the  decision,  is  void  for 
want  of  jurisdiction.  Lambert  v.  Solomon,  23  App.  Div.  562,  59  N.  Y. 
Supp.   676. 

This  court  loses  jurisdiction  of  a  cause  if  the  issues  are  not  decided 
within  the  eight  (now  fourteen)  days  specified  by  statute,  or  within 
the  time  for  which  a  stipulation  extending  the  statutory  limit  of  eight 
days  provides,  and  no  decision  being  rendered  and  no  certificate  for  a 
jury  trial  being  made  within  the  time,  a  trial  had  thereafter  against, 
objection  is  nugatory.  Lamura  v.  Haggerty,  30  Misc.  Rep.  745,  62 
N.  Y.  Supp.   1084. 

By  section  230  the  justice  has  fourteen  days  to  decide  a  cause. 

Enlargement  of  jurisdiction  by  construction  was  refused  in  Mayor, 
etc.  v.  Decker,  12  Daly,  65. 

Estoppel. —  Defendants  answering  upon  the  merits,  and  giving  the 
bond  required  by  section  1366  of  the  Charter  are  estopped  from  avert- 
ing that  the  court  has  not  jurisdiction  of  their  persons.  Vogel  v. 
Banks,  60  App.  Div.  459,  70  N.  Y.  Supp.  1010. 

Implication. —  It  is  a  clear  and  salutary  principle,  that  inferior  juris- 
dictions, not  proceeding  according  to  the  course  of  common  law,  are 
confined  strictly  to  the  authority  given  them.  They  can  take  nothing 
by  implication,  but  must  show  the  power  expressly  given  them,  in 
every  instance.  The  sound  rule  of  construction  is  to  be  liberal  in  re- 
viewing their  proceedings  as  far  as  respects  regularity  and  form,  and 
strict  in  holding  them  to  the  exact  limits  of  jurisdiction,  prescribed 
to  them  by  statute.  Jones  v.  Reed,  1  Johns.  Cas.  20;  s.  c,  1  Paine.  594; 
Loornis  v.  Boicers,  22  How.  361;  Ahem  v.  Nat.  Steamship  Co.,  11  Abb. 
N.  S.  362. 


84  No  Jurisdiction   in  Certain  Cases.  §  2. 

Fictitious  name. —  Jurisdiction  of  the  person  is  not  acquired  by  ser- 
vice upon  him  of  a  summons  naming  a  person  of  a  different  Christian 
name  as  defendant,  without  more.  Ignorance  of  the  name  should  be 
made  to  appear  in  the  summons  to  justify  the  use  of  a  fictitious  name. 
Fisher  v.  Hetherington,   11  Misc.  Rep.  575. 

Judgment  of  a  court  of  record. —  This  court  nas  no  jurisdiction  of  an 
action  on  a  judgment  of  a  court  of  record.  Lambert  v.  Hoffman,  24 
Misc.  Rep.  752,  5:5  N.  Y.  Supp.  962. 

Loss  of  jurisdiction. —  Where  the  record  on  appeal  shows  that  judg- 
ment was  not  entered  until  after  the  expiration  of  eight  (now  four- 
teen) days  after  the  trial  and  submission  of  the  case  to  the  justice  for 
decision,  the  judgment  must  be  reversed  for  loss  of  jurisdiction  to 
render  it.  Penniman  v.  La  Grange,  23  Misc.  Rep.  121,  50  N.  Y.  Supp. 
710. 

Objection  to  jurisdiction  when  to  be  taken. —  The  fact  that  juris- 
diction over  the  defendant  does  not  appear  is  not  available  if  not  taken 
at  the  trial.     Hill  v.  Moebus,  31  Misc.  Rep.  134,  63  N.  Y.  Supp.   1022. 

Objection  to  jurisdiction,  when  may  be  taken. —  The  objection  to  the 
jurisdiction  is  taken  in  time  although  first  presented  on  the  second 
trial,  if  the  fact  of  want  of  jurisdiction  then  appeared  for  the  first 
time.  Brooks  v.  Dinsmore,  28  N.  Y.  St.  Rep.  421,  18  Civ.  Proc.  Rep. 
98.  8  N.  Y.   Supp.   103.     - 

Order  of  reference. —  An  order  of  reference  in  this  court,  though 
entered  by  consent  of  the  parties,  is  absolutely  void.  Barker  v.  Lane, 
CO  App.  Div.  87,  69  N.  Y.  Supp.  739,  revg.  33  Misc.  Rep.  60,  68  N.  Y. 
Supp.  147. 

Service  of  summons  and  complaint  on  defendant's  attorney,  not  fol- 
lowed by  appearance  on  the  return  day,  gives  no  jurisdiction,  and  a 
judgment  entered  thereon  as  by  default  is  void.  Goldberg  v.  Fowler, 
29  Misc.  Rep.  328. 

Referee. —  This  court  has  no  power  to  appoint  a  referee,  even  on  con- 
sent.    Barber  v.  Lane,  60  App.  Div.  87. 

Service  of  summons  not  a  fact. —  The  return  of  a  marshal  of  personal 
service  of  the  summons  on  the  defendant  establishes  jurisdiction  prima 
facie,  but  if  the  service  was  not  a  fact,  no  jurisdiction  is  acquired. 
Iron  Clad  Mfg.  Co.  v.  Benjamin  E.  Smith  &  Sons,  28  Misc.  Rep,  172,  59 
N.  Y.  Supp.  332. 

Subject-matter. —  Where  the  statute  has  not  conferred  jurisdiction 
over  the  subject-matter  of  the  action,  any  judgment  which  may  be 
rendered  will  be  absolutely  void.  Coffin  v.  Tracy,  3  Cai.  129;  Blin  v. 
Cam pbett,  14  Johns.  432;  Dudley  v.  Mayheic,  3  N.  Y.  9;  Beach  v.  Nixon, 
9  X.  Y.  36;   Kiniz  v.  McNeal,  1  Den.  436. 

Substituted  service  by  leaving  the  copy  of  the  summons  at  what 
was  assumed  to  be  the  defendant's  residence,  but  which  in  fact  was 
not,  the  defendant  having  left  the  State,  is  insufficient  to  confer  juris- 


§  2,  Subd.  1.     Xo  Jurisdiction  in   Certain   Oases.        85 

V 

diction.  Matter  of  Norton,  32  Misc.  Rep.  224,  66  N.  Y.  Supp.  (100  St. 
Kep.)    317. 

Summons;  amendment  of. —  Justice  lias  no  power  to  allow  an  amend- 
ment of  summons  on  trial  by  adding  the  amount  named  in  the  summons 
to  another  action  between  the  same  parties.  Balch  v.  Wur~burger,  1) 
Misc.  Rep.  74. 

Id.;  not  indorsed,  the  court  gets  no  jurisdiction.  Bissell  v.  N.  Y., 
etc.,  R.  Co.,  07  Barb.  385.  But  see  Spooner  v.  Cornell,  12  Civ.  Proc. 
Rep.   319. 

Tender  of  undertaking  for  removal  of  the  action  into  the  City  Court 
ceases  the  jurisdiction  of  this  court.  Leverson  v.  Zimmerman,  31  Misc. 
Rep.  642,  64  N.  Y.   Supp.   723. 

Waiver  of  amount  in  excess  of  jurisdiction. —  A  recovtry  in  excess  of 
jurisdiction  may  be  waived  and  a  recovery  had  up  to  the  amount  of 
the  jurisdiction  of  this  court.     Globe  v.  Ranch,  21  Misc.  Rep.  48. 

Written  contract  of  conditional  sale;  hiring  of  personal  property,  or 
chattel  mortgage,  et  cetera. —  By  section  139,  no  action  can  be  main- 
tained in  this  court,  which  arises  on  a  written  contract  of  conditional 
sale  of  personal  property,  where  title  is  not  to  vest  in  the  person 
hiring  until  payment  of  a  certain  sum;  or  a  chattel  mortgage  made  to 
secure  the  purchase  price  of  chattels,  except  an  action  to  foreclose  the 
lien,  as  provided  in  this  section. 

1.  Where  the  title  to  real  property  comes  in  question  as 
prescribed  in  title  four  of  this  act.  But  in  an  action  brought 
in  said  court,  the  surety  upon  the  defendants  undertaking- 
is  liable  in  the  case  specified  in  section  one  hundred  and 
eighty  of  this  act,  to  any  amount  for  which  judgment  might 
have  been  rendered  by  said  court  if  the  answer  and  under- 
taking had  not  been  delivered. 

Note    to  section  2,  subdivision  i. 

This  subdivision  is  the  same  as  subdivision  1  of  section  1365  of  the 
Charter  of  1897,  as  amended  in  1901,  with  the  exception  of  the  refer- 
ences to  title  3  of  chapter  19  and  sections  2951  to  2958  of  the  Code  of 
Civil  Procedure,  and  section  1349  of  chapter  410  of  Laws  1882  (the 
Consolidation  Act),  therein  contained,  having  been  eliminated.  Sections 
2951  to  2958  of  the  said  Code  were  the  same  as  sections  1349  to  1356 
of  the  Consolidation  Act,  and  are  now  contained  in  title  4  of  this  act, 
sections  179  to   186. 

2.  Said  court  shall  not  have  any  equity  jurisdiction,  ex- 
cept however  that  this  subdivision  shall  not  be  so  construed 


86  No  Jurisdiction,  Etc.     §  2,  Subd.  2,  and  §  3. 

as  to  prevent  a  person  to  or  against  whom  a  precept  is  issued 
as  provided  in  title  two  of  chapter  seventeen  of  the  code  of 
civil  procedure,  from  setting  up  an  equitable  defence  in  sum- 
mary proceedings. 

Notes  to  section  2,  subdivision  2. 

Attorney's  lien;  vacating  satisfaction  of  judgment. — This  court  has 
up  power  to  vacate  a  satisfaction-piece  riled  and  issue  execution  on  the 
judgment  to  enforce  an  attorney's  lien.  People  ex  rel.  Jaffe  v.  Fitz- 
patrick,  35  Misc.  Rep.  450,  71  N.  Y.  Supp.  191. 

Equity  powers. —  Upon  a  written  contract  for  the  payment  of  a 
specified  sum  monthly,  the  plaintiff  sued  for  the  amount  due  one  month ; 
the  defendant  answered  with  a  general  denial,  but  admitted  the  exe- 
cution of  the  contract;  the  litigation  involved  the  terms  thereof,  and 
a  less  sum  was  recovered;  this  recovery  was  sustained  against  the 
objection  that  the  court  had  exercised  equity  powers  in  reforming  the 
contract,  the  evidence  supporting  the  judgment  rendered.  Railway, 
etc.,  Co.  v.  Standard,  etc.,  Co.,  29  Misc.  Rep.  115,  60  N.  Y.  Supp.  205. 

No  equity  powers. — District  Courts  possessed  none  of  the  peculiar 
powers  of  courts  of  equity  and  had  no  jurisdiction  whatever  in  respect 
to  them.  Williams  v.  Carroll,  2  Hilt.  438;  Salter  v.  Parkhurst,  2  Daly, 
240. 

No  affirmative  relief  on  the  ground  of  fraud  can  be  had  except  to 
recover  damages  for  fraud  or  deceit,  as  provided  by  section  1,  sub- 
division 13,  of  this  act.  In  the  case  of  Malkemesius  v.  Pauly,  17  Misc. 
Rep.  371,  the  court  tried  the  question  of  fraud  in  the  making  of  an 
assignment  for  the  benefit  of  creditors  as  a  defense  to  an  action  upon 
a  bond  given  by  a  claimant,  no  affirmative  relief  being  asked  on  that 
ground. 

Defense  of  fraud. —  While  this  court  has  no  equity  jurisdiction,  fraud 
in  inducing  a  contract  is  there,  as  elsewhere,  available  as  a  defense. 
Estelle  v.  Dinsbeer,  9  Misc.  Rep.  485;  s.  c,  01  N.  Y.  St.  Rep.  96,  30 
N.  Y.  Supp.  226;   Malkemesius  v.  Pauly,  17  Misc.  Rep.  371. 

Written  instrument. —  These  courts  have  no  jurisdiction  in  actions 
brought  to  reform  a  written  contract  upon  the  ground  of  a  mistake  of 
a  material  fact;  nor  have  they  in  an  action  upon  a  written  instrument 
which  completely  expresses  the  agreement  of  the  parties'  power  to  re- 
ceive evidence  that  the  same  was  made  under  such  a  mistake.  Ferree 
v.  Ellsworth,  1  Delehanty,  93:  s.  c,  47  N.  Y.  St.  Rep.  119,  citing 
Williams  v.  Carroll,  2  Hilt.  438;   Salter  v.  Parkhurst,  2  Daly,  240. 

§3.  Removal. —  In  an  action  specified  in  the  last  section 
but  one,  excepting  subdivisions  four  and  five,  where  the  dam- 


§  3.  Removal.  87 

ages  claimed  or  the  value  of  the  chattel  or  all  the  chattels 
claimed,  as  stated  in  the  complaint,  exceeds  two  hundred  and 
fifty  dollars,  the  defendant  may,  after  issue  is  joined  and 
before  an  adjournment  has  been  granted  upon  his  applica- 
tion, apply  to  the  justice  holding  court  in  the  district  in 
■which  the  action  is  brought  for  an  order  removing  the  action, 
and  if  it  be  in  the  second  district  of  the  borough  of  the 
Bronx,  or  in  any  district  in  the  borough  of  Manhattan,  to 
the  city  court  of  the  city  of  Xew  York,  if  in  any  other  dis- 
trict into  the  county  court  of  the  county  wherein  the  district 
is  situated,  if  the  said  county  court  has  jurisdiction  of  such 
action,  otherwise  into  the  supreme  court  in  such  county. 
Such  an  order  must  be  granted  upon  the  defendant's  filing 
with  the  clerk  an  undertaking  approved  by  the  court,  in  a 
sum  not  less  than  twice  the  amount  of  the  damages  claimed 
or  twice  the  value  of  the  chattel  or  of  all  the  chattels  claimed, 
as  stated  in  the  complaint,  with  one  or  more  sureties,  to  the 
effect  that  the  defendant  will  pay  to  the  plaintiff  the  amount 
of  any  judgment  that  may  be  recovered  against  him  in  the 
court  to  which  such  action  shall  be  removed.  From  the  time 
of  granting  the  order,  the  city  court  or  county  court  or  su- 
preme court,  as  the  case  may  be,  has  cognizance  of  the  action, 
and  the  clerk  of  the  court  must  forthwith  deliver  to  the 
clerk  of  such  court  to  which  the  action  shall  be  removed  all 
process,  pleadings  and  other  papers  in  the  action,  and  certi- 
fied copies  of  all  minutes,  entries  and  orders  relating  thereto, 
which  must  be  filed,  entered  or  recorded,  as  the  case  requires, 
in  the  latter's  office.  Where  there  are  two  or  more  de- 
fendants to  an  action  all  of  the  defendants  must  unite  in 
the  application.  But  the  court  in  the  district  in  which  the 
action  is  brought,  if  satisfied  from  all  the  circumstances  of 
the  case,  by  competent  proof  either  by  affidavit  or  the  ex- 
amination of  witnesses  that  the  defendants,  other  than  the 
one  making  the  application,  have  been  named  as  defendants, 
solely  for  the  purpose  of  preventing  the  removal,  may,  not- 
withstanding the  failure  of  defendants  to  unite,  grant  the 
application  for  removal. 


88  Removal.  §  3. 

Notes  to  section  3. 

This  section  was  formerly  section  1.36G  of  the  Charter  (Laws  1897,. 
chap.  378,  as  amended  in  1901),  which  superseded  section  1287  of  the 
Consolidation  Act  (Laws  1882,  chap.  410),  the  latter  of  which  took 
the  place  of  section  3216  of  the  Code  of  Civil  Procedure.  The  order 
of  removal  was  formerly  to  the  Court  of  Common  Pleas  up  to  the 
time  when  by  Laws  1895,  chapter  946,  that  court  was  abolished,  and 
since  which  time  the  removal  has  been  and  is  now  under  the  present 
act  to  the  "  City  Court  of  the  city  of  New  York." 

Two  important  changes  have  been  made  in  this  section.  In  the 
former  section  1365  of  the  Charter  of  1897,  as  amended  in  1901,  it 
was  required  that  the  defendant  file  with  the  clerk  an  undertaking  in 
a  sum  fixed  by  the  justice,  etc.  Thus  the  undertaking  was  often  exe- 
cuted with  the  sum  blank,  and  after  its  execution  the  justice  fixed  the 
amount,  which  was  inserted  in  the  undertaking;  this  gave  rise  to  the 
decisions  in,  Scherens  v.  Hopkins,  42  N.  Y.  St.  Rep.  189;  s.  c,  16  N.  Y. 
Supp.  863,  that  a  valid  undertaking  on  removal  may  be  executed  before 
the  amount  is  fixed  by  the  court,  and  if  it  is  in  the  amount  so  fixed 
it  will  be  binding  on  the  sureties  from  the  time  it  is  filed  with  the 
clerk,  although  the  fact  of  the  fixing  is  not  recited  in  it;  and  to  the 
case  of  Morgan  v.  Lehigh  R.  R.  Co.,  14  Misc.  Rep.  26,  that  the  fact 
that  the  undertaking  was  executed  before  the  court  had  made  an  order 
fixing  its  amount  is  no  reason  for  denying  an  application  for  removal. 

The  other  change  is  that  relating  to  a  case  where  there  are  two  or 
more  defendants  who  must  unite  in  the  application  to  prevent  an  im- 
proper interference  with  the  right  of  removal.  This  legislation  was 
caused  doubtless  by  such  cases  as  Matter  of  Suydam,  26  Misc.  Rep.  868, 
and  People  ex  rcl.  Metropolitan  St.  Ry.  Co.  v.  Roesch,  27  Misc.  Rep. 
44,  57  N.  Y.  Supp.  295. 

It  will  be  observed  that  the  actions  mentioned  in  subdivisions  4  and 
5  of  section  1  are  excluded  from  removal;  these  are  actions  upon  a 
bastardy  or  abandonment  bond,  and  an  action  upon  the  bond  of  a 
marshal. 

Care  must  be  taken  that  the  application  to  remove  is  made  after 
issue  joined,  and  before  an  adjournment  is  had.  The  form  of  the 
undertaking  and  the  order  on  removal  provide  for  this.  Care  must 
also  be  taken  that  the  undertaking  is  approved  by  the  court. 

Adjournment. —  A  motion  by  the  party  desiring  the  removal  which 
necessitates  an  adjournment  is  equivalent  to  an  application  for  an 
adjournment.     Ives  v.  Qumn,  7  Misc.  Rep.  660. 

Where  defendant  withdraws  his  application  for  removal  on  return 
day  of  summons  and  obtains  an  adjournment,  he  loses  his  right  to- 
removal.  Enright  v.  Franklin  Pub.  Co.,  24  Misc.  Rep.  181;  s.  c,  52; 
N.  Y.  Supp.  704. 


§  3.  Removal.  89 

By  the  terms  of  the  statute,  after  an  adjournment  had  at  defend- 
ant's instance,  it  is  too  late  to  remove.  Dinkle  v.  Wehle,  11  Abb. 
N.  C.    124. 

For  further  examples  and  cases,  see  "  Waiver  of  Right,"  below. 

Amendment  of  undertaking  can  only  be  had  with  the  consent  of  the 
sureties.  Langlcy  v.  Warren,  1  N.  Y.  606;  s.  c,  3  How.  363;  Wilson 
v.  Allen,  3  How.  369.  Consult  however  Wood  v.  Kelly,  2  Hilt.  334; 
Irwin  v.  Muir.  13  How.  Pr.  409;  9.  c,  4  Abb.  133;  Robins  v.  Moran,  23- 
Week.  Dig.  326. 

Amount;  interest  on  claim. —  Interest  is  an  element  of  a  debt  or 
claim,  and  follows  as  a  matter  of  right.  And  where  the  complaint  in 
an  action  brought  upon  a  check  for  $100,  demands  the  amount  of  the 
check  and  five  days'  interest,  ,"  the  damages  claimed"  exceed  within 
the  meaning  of  section  3216  of  the  Code  of  Civil  Procedure  $100,  and 
the  appellant  defendant  is  consequently  entitled  as  a  matter  of  right 
to  remove  the  case  to  the  City  Court  upon  complying  with  the  require- 
ments of  the  said  section.     Blumenthal  v.  Lloyd,  18  Misc.  Rep.  195. 

Where  the  complaint,  in  an  action  for  personal  injuries,  demands 
judgment  for  $245,  with  interest  from  a  day  stated,  the  case  may  prop- 
erly be  removed  to  the  City  Court  of  said  city  if  the  interest,  if  given 
by  the  jury  upon  the  trial,  would  make  the  damages  exceed  $250  at 
the  time  when  removal  is  sought.  Leicis  v.  Metropolitan  St.  Ry.  Co., 
35  Misc.  Rep.  304. 

Consolidation  of  actions;  removal  on. —  The  Marine  Court  (City  Court 
of  New  York ) ,  on  a  motion  to  consolidate,  had  power  to  remove  to 
itself  an  action  pending  in  one  of  the  District  Courts  of  the  city  of 
New  York.  McKay  v.  Reed,  City  Court  Rep.,  vol.  1,  p.  464.  See  also 
s.  c.  12  Abb.  N.  C.  58  and  22  Abb.  N.  C.  62,  followed  in  Sire  v.  Rneuper, 
19  N.  Y.  St.  Rep.  43;  s.  c,  22  Abb.  N.  C.  63,  and  2  McCarthy,  194,  n. 

The  City  Court  of  New  York  has  power  to  remove  from  this  court 
and  consolidate  with  an  action  pending  in  it  between  the  same  parties, 
an  action  in  this  court  where  the  causes  of  action  arise  out  of  the  same 
transaction  and  are  provable  by  the  same  evidence.  Curley  v.  Schafer 
Brewing  Co.,  35  Misc.  Rep.  131. 

Constitutionality. —  The  statute  to  remove  the  cause  is  not  unconsti- 
tutional, as  impairing  the  obligation  of  a  contract  or  taking  a  vested 
right.     Johnson  v.  Ackerson,  3  Daly,  430. 

Costs  on  removal.—  In  Levene  v.  Hahner,  62  App.  Div.  195,  it  was 
held,  "  that  with  respect  to  actions  originally  commenced  in  this  court 
and  removed  into  the  City  Court  of  the  city  of  New  York  and  tried: 
therein,  no  provision  has  been  made  by  the  Legislature  as  to  costs, 
and  that  under  such  circumstances  neither  party  is  entitled  to  them. 

By  section  332,  it  is  provided  that,  "  Where  an  action  is  removed, 
as  provided  in  section  three  of  this  act,  costs  shall  be  allowed  the  same 
as  if  the  action  had  been  commenced  in  the  court  to  which  it  is 
removed." 


90  Removal.  §  3. 

Discontinuance  of  action  cannot  be  granted  until  the  justice  has  ap- 
proved the  undertaking  on  removal  or  refused  to  do  so.  Tuttle  v.  Gal- 
ligan,  -'■'>  Misc.  Rep.  4.17,  51  X.  Y.  Supp.  359;  Leverson  v.  Zimmerman, 
31    Misc.   Rep.  642,  64   X.   Y.  Supp.  723. 

Duty  of  justice  in  approving  undertaking. — -Where  an  undertaking 
with  two  sureties  is  presented  to  the  justice  for  the  purpose  of  the 
removal  of  a  proper  case  into  the  Court  of  Common  Pleas,  the  justice 
is  bound  judicially  to  approve  the  undertaking  and  sign  the  order  of 
removal.  The  justice  has  no  discretion  in  such  a  case  to  refuse  to 
approve  and  accept  of  one  of  the  sureties  on  the  ground  that  he  is  per- 
sonally acquainted  with  him  and  will  not  accept  him  as  a  responsible 
surety.     O'Connor  v.   Moschowitz,   4S    How.   Pr.  451. 

Remedy,  if  justice  refuse  to  accept  the  undertaking. —  Where  the 
justice  erroneously  refused  to  accept  the  undertaking  and  sign  the 
order  of  removal  the  defendant's  remedy  is  by  appeal,  and  prohibition 
will  not  lie  against  further  proceedings  in  the  case  by  the  justice. 
People  v.  Fourth  District  Court,  13  Civ.  Pro.  Rep.  134.  See  also  O'Con- 
nor v.  Moschoivitz,  48  How.  Pr.  451;  Greve  v.  Wallowitz,  24  Misc.  Rep. 
601. 

On  appeal  a  judgment  was  reversed  on  the  ground  that  the  justice 
had  proceeded  after  his  jurisdiction  was  arrested  by  an  application 
for  removal  of  the  cause.  •  Held,  that,  after  the  appellate  court  had  inti- 
mated or  announced  its  decision,  it  was  too  late  for  a  motion  to  amend 
the  justice's  return  so  as  to  show  that,  before  defendants'  application  for 
removal,  there  had  been  an  adjournment  on  their  application,  and  for 
a  reargument  on  such  amended  return.  Warren  v.  Campbell,  14  N.  Y. 
Supp.  165.  This  case  contains  on  page  166  a  note  on  removal.  The 
case  is  also  reported  in  37  N.  Y.  St.  Rep.  762. 

A  refusal  to  grant  an  application  for  removal  of  the  cause  cannot 
be  held  to  be  prejudicial  error  where  the  record  fails  to  show  that  such 
application  has  been  made  after  issue  was  joined.  Zeimer  v.  Htearns, 
14  Misc.  Rep.  7. 

Effect  of  offer  of  undertaking;  jurisdiction  arrested. —  The  jurisdic- 
tion of  the  justice  is  arrested  when  the  undertaking  is  offered,  and  he 
can  take  no  step  in  the  cause,  except  to  adjourn,  until  he  has  accepted 
or  refused  the  undertaking.  Hogan  v.  Devlin,  2  Daly,  184;  Warren  v. 
Campbell,   14  N.  Y.  Supp.   165. 

The  tender  of  the  undertaking  tor  removal  of  the  cause  to  the  City 
Court,  under  Code  Civ.  Proc,  §  3216,  arrests  the  jurisdiction  of 
the  justice  until  he  has  approved  the  undertaking  or  refused  to  do 
so,  and  he  has  no  authority  thereupon  to  grant  a  discontinuance. 
Tuttle  v.  Galligan,  23  Misc.  Rep.  457,  51  N.  Y.  Supp.  359.  See  also 
Leverson  v.  Zimmerman,  31  Misc.  Rep.  642,  64  N.  Y.  Supp.  723. 

Estoppel;  jurisdiction;  waiver. —  Defendants  answering  upon  the 
merits  and  giving  the  bond  required  are  estopped  from  asserting  that 


§  3.  Removal.  91 

the  court  has  not  jurisdiction  of  their  persons.  Vogcl  v.  Banks,  GO 
App.  Div.  459,  70  N.  Y.  Supp.  1010. 

Exception  to  and  justification  of  sureties. —  Neither  the  act  of  1857 
(chap.  344),  the  Charter  Act  of  1897,  as  amended  in  1901,  section  1365, 
made,  nor  does  the  present  act  make,  any  provisions  for  an  exception 
to,  and  justification  of,  sureties.  This  gave  rise  to  such  decisions  as 
Moore  v.  Thompson,  2  Daly,  180,  where  it  was  held,  the  justice  could 
adopt  any  reasonable  mode  of  satisfying  himself  of  the  sufficiency  of 
the  sureties.     See  also  Fleurelling  v.  Brandon,  4  Daly,  333. 

This  omission  from  section  3  of  the  present  act  has  been  provided 
for  in  section  70  of  the  present  act,  headed  "  Sections  applicable  as  to 
undertakings,"  etc.,  making  sections  106  to  110  and  sections  127  and 
128  of  the  present  act  relating  to  the  exception,  qualification  and 
justification  of  sureties  and  the  approval  or  allowance  of  the  under- 
taking apply  to  the  undertaking  on  removal. 

Increasing  amount  sued  for. —  An  amendment  on  the  trial,  by  includ- 
ing the  amount  claimed  in  another  action  in  the  same  court,  though 
it  increased  the  amount  to  a  sum  which  entitled  defendant  to  a  re- 
moval, deprived  him  of  his  opportunity  to  claim  such  a  right,  and  was 
therefore  improperly  granted.  Batch  v.  Wurzburner,  29  N.  Y.  Supp.  G2 ; 
Walker  v.  Scott,  3  Misc.  Rep.  329-  s.  c,  23  N.  Y.  Supp.  234,  23 
Civ.   Proc.   Rep.   90. 

Insufficient  undertaking. —  An  action  brought  in  the  borough  of  Brook- 
lyn may,  under  the  Charter  of  1897,  be  removed  to  the  County  Court  as 
a  matter  of  right  by  defendant,  where  it  is  brought  to  recover  chattels 
of  a  value  exceeding  $250,  upon  filing  the  statutory  undertaking  with 
one  surety,  and  if  the  justice  deems  the  undertaking  offered  to  be 
insufficient,  he  may  permit  another  undertaking  to  be  furnished.  Greve 
v.   Walloicitz,  24   Misc.  Rep.   601. 

Mandamus  will  not  issue  to  compel  a  justice  to  order  the  removal  of 
a  cause  to  the  City  Court,  which  he  refuses  to  do  on  the  ground  he  has 
no  power,  where  there  is  an  adequate  remedy  by  appeal.  People  ex  rel. 
Metropolitan  St.  Ry.  Co.  v.  Roesch,  27  Misc.  Rep.  44,  57  N.  Y.  Supp.  295. 

Mistakes,  omissions,  defects,  and  irregularities;  and  general  rules 
respecting  affidavits,  bonds  and  undertakings. —  See  notes  to  §  1,  subd. 
3,  and  §  3. 

Offer  to  allow  judgment. —  As  to  the  effect  of  an  offer  in  the  court 
below  after  a  removal,  see  Mack  v.  Soule,  52  Hun,  198,  23  N.  Y.  St.  Rep. 
307,   17    Civ.   Proc.   Rep.    121. 

Reducing  amount  of  claim. —  Where  a  justice,  after  the  filing  of  such 
an  undertaking,  and  before  its  approval  or  disapproval  by  him,  enter- 
tained a  motion  by  the  plaintiff  to  reduce  the  amount  of  his  claim,  and 
thus,  on  the  proof  adduced,  gave  a  judgment  for  the  plaintiff. — Held, 
that  such  judgment  was  erroneous,  and  will  be  reversed  on  appeal. 
Hogan  v.  Devlin,  2  Daly,  184. 


92  Removal.  §  3. 

Remanding  for  amendment. —  Whore  after  the  removal  of  a  cause  it 
appears  that  the  undertaking  given  to  secure  such  removal  is  defective 
in  that  it  does  not  state  any  amount  of  penalty,  the  court  should 
direct  that  the  return  be  remanded  for  the  purpose  of  allowing  an 
amendment  to  the  undertaking.  Levy  v.  Scheringer,  19  Civ.  Pro.  Rep. 
346. 

Status  of  action  removed. —  See  Druckermiller  v.  Shoniger,  15  Daly, 
477;  Latterman  v.  Fere,  11  Civ.  Proe.  Rep.  217;  Salter  v.  Parkkurst, 
3  Daly,  24(1. 

Stay  of  proceedings  in  this  court  by  the  Supreme  Court. —  Upon  hear- 
ing of  a  motion  to  consolidate  with  an  action  in  the  Supreme  Court  an 
action  pending  in  a  District  Court,  it  was  shown  that  on  the  lGth  day 
of  October,  1895,  the  plaintiff  commenced  an  action  in  a  District  Court 
upon  a  policy  of  insurance  against  two  persons  named  Daynes  and 
Van  Der  Hoogt,  who  were  alleged  to  be  severally  liable;  that  on  the  9th 
day  of  November,  1895,  he  began  the  present  action  upon  the  same 
policy  against  the  same  defendants  and  forty-eight  other  defendants, 
and  claimed  herein  a  several  liability  on  the  part  of  each  defendant 
for  the  whole  amount  of  the  insurance  for  which  the  policy  was  written. 
The  court  denied  the  motion  to  consolidate.  Held,  that  this  was  proper. 
That  the  proper  course  for  the  defendants  was  not  to  have  moved  to 
consolidate,  but  to  have  moved  to  stay  the  trial  of  the  District  Court 
action  until  the  trial  of  the  action  in  the  Supreme  Court  and  that  the 
court  had  power  to  direct  such  a  stay.  Isear  v.  Daynes,  1  App.  Div. 
557. 

Supplemental  answer  cannot  be  allowed  in  an  action  removed  from 
this  court  under  the  statute,  but  an  amended  answer  setting  up  such 
supplemental  matter  may  be  allowed  on  terms.  Meyers  v.  Rosenback, 
9  Misc.  Rep.  89. 

Tender  of  undertaking  for  removal. —  Jurisdiction  over  an  action  re- 
movable to  the  New  York  City  Court,  in  which  there  has  been  no  ad- 
journment, ceases  upon  the  tender  by  defendant  of  an  undertaking  for 
the  largest  amount  mentioned  in  Code  of  Civil  Procedure,  section  3216, 
though  no  order  was  made.  Lever  son  v.  Zimmerman,  31  Misc.  Rep. 
642,  64  N.  Y.  Supp.  723.  See  also  Tuttle  v.  Galligan,  23  Misc.  Rep.  457, 
51  N.  Y.  Supp.  359. 

Waiver  of  right. —  By  the  terms  of  the  statute  after  an  adjournment 
had  at  defendant's  instance,  it  is  too  late  for  an  order  of  removal. 
Dinkle  v.  Wehle,  11  Abb.  N.  C.  124. 

Where  an  action  is,  after  issue  joined,  adjourned  by  consent,  and  the 
parties  afterward  proceed  to  trial,  defendant  thereby  waives  his  right 
to  remove  the  action.     Halperin  v.  Schermerhom,  28  N.  Y.  Supp.  5G2. 

An  action  cannot  be  removed  after  the  parties  have  elected  to  pro- 
ceed to  trial  and  submitted  to  the  jurisdiction.  Halperin  v.  Schermer- 
hom, 56  N.  Y.  St.  Rep.  336. 


§3.  Removal.  93 

Where,  after  filing  the  undertaking,  an  adjournment  is  granted  to 
allow  defendant  to  produce  his  sureties,  and  on  the  adjourned  day  he 
fails  to  appear  and  judgment  goes  against  him  by  default,  on  opening 
the  default  he  waives  his  right  to  recover  by  signing  a  stipulation  to 
pay  the  amount  of  plaintiff's  claim  into  court,  and  to  come  in  and  de- 
fend on  the  merits.     Krahner  v.  Heilman,  9  N.  Y.  Supp.  033. 

An  adjournment  was  taken  in  order  to  allow  defendant  to  produce 
his  sureties  to  justify  on  an  undertaking  offered  for  the  removal  of  the 
cause,  but  he  failed  to  appear  on  the  adjourned  day,  and  his  default 
was  taken.  .Subsequently,  the  default  was  vacated  and  defendant  per- 
mitted to  defend  on  depositing  the  amount  of  plaintiff's  claim  and  costs 
with  the  court  and  signing  a  stipulation  to  that  effect,  and  the  case  was 
thereafter  adjourned  several  times.  Held,  that  defendant  by  his  stipu- 
lation and  his  subsequent  proceedings  waived  his  right  to  a  removal. 
Krahmr  v.  Heilman,  16  Daly,  132;  s.  c,  30  N.  Y.  St.  Rep.  434,  9  N.  Y. 
Supp.  633. 

On  a  preliminary  motion  the  court  imposed  costs  upon  the  plaintiff 
as  a  condition  of  requiring  defendant  to  answer.  Defendant  answered 
and  filed  undertaking  on  application  for  removal  of  the  cause  to  the 
City  Court,  and  upon  appearing  with  his  sureties  for  justification,  sug- 
gested that  plr.mtiff  had  not  paid  the  costs  imposed  upon  him,  where- 
upon the  court  adjourned  the  case  for  a  week,  and  on  the  adjourned 
day  dismissed  it  on  defendant's  motion,  but  subsequently  vacated  the 
order  of  dismissal.  Held,  that  these  facts  did  not  constitute  a  waiver 
of  defendant's  right  to  a  removal  of  the  cause.  Schnitzpahn  v.  The 
Davis  Sewing  Machine  Co.,   19  Misc.  Rep.  621. 

PROCEEDINGS  AFTER  REMOVAL  IN  THE  CITY  COURT. 

Action  not  as  one  brought  in  a  court  of  record. —  An  action  removed 
is  not  an  action  "  brought "  in  court  of  record,  within  tne  meaning 
of  section  3208  of  the  Code  of  Civil  Procedure,  allowing  defendant  to 
require  security  for  costs  from  a  nonresident  plaintiff.  But  while 
defendant  cannot  require  security  for  costs,  the  court  may  require  it, 
under  section  889  of  the  Code,  as  a  condition  of  allowing  plaintiff  a. 
eommission  to  take  testimony  abroad;  and  such  a  condition  is  reason- 
able where  plaintiffs  have  delayed  their  application  without  apparent 
cause,  and  their  recovery  is  doubtful.  H antes  et  al.  v.  Judd,  16  Daly, 
110. 

Amendment  of  pleadings. —  The  court  has  power  to  allow  amendment 
of  pleadings  in  actions  removed  to  it  from  the  court  below,  to  the  same 
extent,  and  within  the  same  limits,  as  the  court  below  would  have  had 
if  no  such  removal  had  taken  place.  Lallcman  v.  Fere,  18  Abb.  N.  C. 
56;    s.  c,   11   Civ.  Proc.  Rep.  217:   Ludwig  v.   Martin,  4  Daly,  481. 

Amount  of  recovery  limited  as  in  court  below.—  After  removal,  the 
plaintiff  is  limited  in  the  amount  of  his  recovery  by  the  special  juris- 


O-i  Removal.  §  3. 

diction  of  the  court  below;  a  complaint  demanding  a  greater  sum  is 
bad  on  demurrer.  Druckenmiller  v.  Shoninger,  15  Daly,  477;  s.  c,  29 
X.  Y.  St.  Rep.  142,  8  N.  Y.  Supp.  482;  Ives  v.  Quvnn,  7  Misc.  Kep.  000; 
s.  c,  58  X.  V.  St.  Rep.  300,  28  X.  Y.  Supp.  267. 

More  than  $250  may  be  recovered,  if  claimed  in  the  summons,  as  was. 
decided  in  the  well-considered  case  of  Ludwig  v.  Minnott,  4  Daly,  481  -r 
but  this  case  was  not  mentioned  or  followed  on  this  point  in  subsequent 
decisions,  although  it  is  mentioned  with  approval  in  Lalleman  v.  Fcre> 
18  Abb.  X.  C.  CO,  upon  the  question  of  amendment  of  the  pleadings, 
after  removal. 

Defective  undertaking;  remedy  for. —  Where,  after  the  removal  of  a 
cause,  it  appears  that  the  undertaking  given  to  secure  such  removal  is 
defective  in  that  it  does  not  state  any  amount  of  penalty,  the  court 
should  direct  that  the  return  be  remanded  for  the  purpose  of  allowing 
an  amendment  to  the  undertaking.  Levy  v.  Scheringer,  19  Civ.  Proc. 
Rep.  340;  s.  e.,  13  X.  Y.  Supp.  500. 

Where  one  of  two  defendants,  who  was  served  with  the  summons,  in 
his  undertaking  on  removal  omitted  to  allege  that  his  codefendant  had 
not  been  served ;  upon  motion  to  remand  the  action  for  said  error,  the 
court  granted  the  motion  for  the  purpose  of  allowing  the  undertaking 
to  be  amended  in  the  court  below,  and  otherwise  denied  the  motion. 
~Nicoll  v.  Palmer,  68  X.  Y.  St.  Rep.  791,  citing  Levy  v.  Scheringer, 
18  Civ.   Proc.  Rep.  346. 

Improper  removal. —  Where  a  case  is  improperly  removed,  it  may  be 
remanded.     Field  v.  Talcott,  4  Law  Bui.  22. 

Increase  of  amount  claimed  after  the  removal,  to  the  court  into  which 
the  action  was  removed,  is  discretionary  with  the  court,  and  will  not 
be  granted  if  there  is  laches  in  the  application,  and  without  reason 
given  for  the  increase.  Katzenbach  v.  McLeod,  Lawrence,  J.,  X.  Y. 
Law  Journal,  Feb.  8  and  May  1,  1896.  See  also  Walker  v.  Scott,  3 
Misc.  Rep.  329,  and  opinion  in  Smith  v.  White,  23  X.  Y.  574;  Ludwig 
v.  Minnott,  4  Daly,  481;  Vakcs  v.  High,  11  Misc.  Rep.  213. 

An  action  brought  on  oral  pleadings  was  removed  and  the  pleadings, 
reduced  to  writing  under  an  order  of  the  court.  Defendant  thereupon, 
in  his  written  answer,  interposed  a  counterclaim  for  a  greater  sum 
than  claimed  in  the  court  below,  and  in  excess  of  the  amount  for 
which  the  District  Courts  could  entertain  jurisdiction.  Held,  that  the 
service  of  the  answer,  setting  up  new  defenses  and  a  counterclaim  for 
a  larger  sum  without  leave  of  the  court,  was  unauthorized.  Walker  v. 
Scott,  3  Misc.  Rep.  329;  s.  c,  23  X.  Y.  Supp.  234,  23  Civ.  Proc.  Rep. 
90;  Batch  v.  Wurzburner,  29  X.  Y.  Supp.  62. 

Jurisdiction  and  practice. —  When  a  cause  is  transferred  it  becomes 
subject  to  all  the  general  rules  of  practice  and  principles  of  law 
governing  cases  of  like  character  as  to  which  the  court  has  original 
jurisdiction.     Ludwig  v.  Minnott,  4  Daly,  4S1. 


§  3.  Removal.  05 

The  court  to  which  the  action  was  removed  has  exclusive  jurisdiction 
of  the  action  and  all  proceedings  thereunder,  and  if  the  plaintiff  prose- 
cuted in  the  court  below  was  a  poor  person,  a  new  order  must  be  ob- 
tained.    Oakes  v.  High,   11  Misc.  Rep.  313. 

Pleadings. —  The  pleadings  being  oral  were  reduced  to  writing  by  an 
order  of  the  court  to  which  the  action  was  removed.  The  defendant 
in  his  answer  interposed  a  counterclaim  for  a  greater  sum  than  that 
claimed  in  the  court  below,  and  in  excess  of  the  amount  for  which  the 
District  Courts  could  entertain  jurisdiction.  Held,  that  the  servict 
of  the  answer  setting  up  a  new  defense  and  a  counterclaim  for  a  larger 
sum  without  leave  of  the  court  was  unauthorized.  Walker  v.  Scott, 
3  Misc.  Rep.  329;  s.  c,  53  N.  Y.  St.  Rep.  632.  See  also  opinion  in 
Smith  v.  White,  23  N.  Y.  574. 

The  oral  pleadings  upon  the  removal  of  the  cause  to  the  City  Court 
become  the  pleadings  to  the  latter,  and  upon  its  order  to  reduce  them 
to  writing,  the  defendant  should  answer  as  he  did  below,  and  an  ob- 
jection that  the  complaint  does  not  conform  to  the  oral  complaint 
should  be  taken  by  answer,  and  not  by  demurrer.  Davis  v.  Bingham,  32 
Misc.  Rep.  777,  66  N.  Y.  Supp.  489. 

No  change  of  issues. — An  action,  after  removal,  cannot  be  changed 
in  its  character  by  that  court  or  by  a  referee.  The  issues  created  by  the 
pleadings  in  the  court  below  are  those  to  be  tried  on  its  removal  to 
this  court,  and  it  continues  in  all  respects  to  be  an  action  of  the  court 
below,  the  trial  of  which  is  to  be  had  in  the  court  to  which  the  action 
was  removed.  The  issues  cannot  be  so  changed  that  a  subject  not  of 
original  jurisdiction  may  be  litigated  against  the  consent  of  one  of  the 
parties.  Smith  v.  White,  23  N.  Y.  572;  Salter  v.  Parkhurst,  2  Daly, 
240;   Fagan  v.   Boar,   11  Civ.  Proc.  Rep.  220. 

Poor  person;  new  order. —  The  court  to  which  the  action  was  removed 
has  exclusive  jurisdiction  of  the  action  and  all  proceedings  thereunder, 
and  if  the  plaintiff  desires  to  proceed  in  it  as  a  poor  person,  a  new 
order  must  be  obtained.  A  party  to  whom  leave  has  been  granted  to 
sue  as  a  poor  person  who  neglects  to  call  the  attention  of  his  opponent 
or  the  court  to  the  order,  until  after  entry  of  judgment  and  taxation 
of  costs,  loses  all  rights  under  the  order.  Oakes  v.  High,  11  Misc.  Rep. 
313. 

Recovery  can  not  be  had  beyond  the  amount  stated  in  the  complaint, 
as  it  is  this  sum  that  limited  the  jurisdiction  of  the  justice  under 
section  3215  of  the  Code  of  Civil  Procedure.  Ives  v.  Quinn,  7  Misc. 
Rep.  660;  s.  c,  58  N.  Y.  St.  Rep.  390,  28  N.  Y.  Supp.  267. 

Security  for  costs  cannot  be  required  on  the  ground  of  plaintiff's  non- 
residence  in  an  action  removed.  Hames  v.  Judd,  30  N.  Y.  St.  Rep.  666 ; 
s.  c,  18  Civ.  Proc.  Rep.  324.  9  1ST.  Y  Supp.  743. 

Supplemental  answer  cannot  be  served  in  an  action  removed.  But  an 
amendment  of  the  answer  may  be  allowed  on  terms.  Meyers  v.  Rosen- 
bach,  7  Misc.  Rep.  560;   Russell  v.  Ruckman,  3  E.  D.  Smith,  419. 


96  Contempt  of  Court.  §§  4,  5,  G. 

§4.  Contempt  of  court;  criminal. —  The  said  court  has 
power  to  punish  for  a  criminal  contempt,  a  person  guilty  of 
either  of  the  following  acts  and  no  others : 

1.  Disorderly,  contemptuous  or  insolent  behavior,  com- 
mitted during  its  sitting,  in  its  immediate  view  and  presence, 
and  directly  tending  to  interrupt  its  proceedings,  or  to  impair 
the  respect  due  to  its  authority. 

2.  Breach  of  the  peace,  noise  or  other  disturbance  directly 
tending  to  interrupt  its  proceedings. 

3.  Wilful  disobedience  to  its  lawful  mandate. 

4.  Resistance  wilfully  offered  to  its  lawful  mandates. 

5.  Contumacious  and  unlawful  refusal  to  be  sworn  as  a 
witness,  or  after  being  sworn,  to  answer  any  legal  and  proper 
interrogatory. 

G.  Publication  of  a  false  or  grossly  inaccurate  report  of  its 
proceedings.  But  a  court  cannot  punish  as  a  contempt,  the 
publication  of  a  true,  full  and  fair  report  of  a  trial,  argument, 
decision  or  other  proceeding  thereon. 

§  5.  Punishment. —  Punishment  for  a  contempt,  specified  in 
the  last  section,  may  be  by  fine,  not  exceeding  two  hundred 
and  fifty  dollars,  or  by  imprisonment  not  exceeding  thirty 
days,  in  the  jail  of  the  county  where  the  court  is  sitting,  or 
both,  in  the  discretion  of  the  court.  Where  a  person  is  com- 
mitted to  jail,  for  the  non-payment  of  such  a  fine,  he  must  be 
discharged  at  the  expiration  of  thirty  days;  but  where  he 
is  also  committed  for  a  definite  time,  the  thirty  days  must  be 
computed  from  the  expiration  of  the  definite  time. 

§  6.  In  view  of  court;  how  punished. —  Such  a  contempt, 
committed  in  the  immediate  view  and  presence  of  the  court, 
may  be  punished  summarily.  When  not  so  committed,  the 
party  charged  must  be  notified  of  the  accusation,  and  have  a 
reasonable  time  to  make  a  defence,  and  the  court  may  issue  a 
warrant  directed  generally  to  any  marshal  requiring  him  to 
bring  the  offender  before  the  court.  Where  a  person  is  com- 
mitted for  such  a  contempt,  the  particular  circumstance  of 
his  offence  must  be  set  forth  in  the  mandate  of  commitment. 


§§  7,  8.  Contempt  of  Coukt.  97 

§  7.  Preceding  three  sections  limited. —  Punishment  for  a 
contempt,  as  herein  prescribed,  does  not  bar  an  indictment 
for  the  same  offence;  but  where  a  person  who  has  been  so 
punished  is  convicted  on  such  an  indictment,  the  courts  in 
sentencing  him,  must  take  into  consideration  the  previous 
punishment. 

§  8.  Contempts  punishable  civilly. —  The  court  has  power 
to  punish,  by  fine  and  imprisonment,  or  either,  a  neglect  or 
violation  of  duty,  or  other  misconduct,  by  which  a  right  or 
remedy  of  a  party  to  a  civil  action  or  special  proceeding, 
pending  in  the  court  may  be  defeated,  impaired,  impeded,  or 
prejudiced,  in  either  of  the  following  cases: 

1.  An  attorney,  counsellor,  clerk,  sheriff,  marshal,  coroner, 
or  other  person,  in  any  manner  duly  selected  or  appointed 
to  perform  a  judicial  or  ministerial  service,  for  a  misbehavior 
in  his  office  or  trust,  or  for  a  wilful  neglect  or  violation  of 
duty  therein;  or  for  disobedience  to  a  lawful  mandate  of  the 
court,  or  of  a  judge  thereof,  or  of  an  officer  authorized  to 
perform  the  duties  of  such  a  judge. 

2.  A  party  to  the  action  or  special  proceeding,  for  putting 
in  fictitious  bail  or  a  fictitious  surety,  or  for  any  deceit  or 
abuse  of  a  mandate  or  proceeding  of  the  court. 

3.  A  party  to  the  action  or  special  proceeding,  an  attorney, 
counsellor,  or  other  person,  for  the  non-payment  of  a  sum  of 
money  ordered  or  adjudged  by  the  court  to  be  paid,  in  a 
case  where  by  law  execution  cannot  be  awarded  for  the 
collection  of  such  sum;  or  for  any  other  disobedience  to  a 
lawful  mandate  of  the  court. 

4.  A  person  for  assuming  to  be  an  attorney  or  counsellor, 
or  other  officer  of  the  court,  and  acting  as  such  without 
authority;  for  rescuing  any  property  or  person  in  the  custody 
of  an  officer,  by  virtue  of  a  mandate  of  the  court;  for  un- 
lawfully detaining  or  fraudulently  preventing,  or  disabling 
from  attending  or  testifying,  a  witness,  or  a  party  to  the 
action  or  special  proceeding,  while  going  to,  remaining  at, 
or  returning  from,  the  sitting  where  it  is  noticed  for  trial  or 

7 


9S  Contempt  of  Court.  §§  4,  5, 6, 7* 

bearing;  and  for  any  other  unlawful  interference  with  the 
proceedings  therein. 

5.  A  person  subpoenaed  as  a  witness,  for  refusing  or 
neglecting  to  obey  the  subpoena,  or  to  attend,  or  to  be  sworn 
or  to  answer  as  witness. 

6.  A  person  duh  notified  to  attend  as  a  juror  at  a  term 
of  the  court,  for  improperly  conversing  with  a  party  to  an 
action  or  special  proceeding,  to  be  tried  at  that  term,  or  with 
any  other  person  in  relation  to  the  merits  of  that  action  or 
special  proceeding;  or  for  receiving  a  communication  from 
any  other  person,  in  relation  to  the  merits  of  such  an  action 
or  special  proceeding,  without  immediately  disclosing  the 
same  to  the  court. 

7.  In  any  other  case  where  an  attachment  or  any  other 
proceeding  to  punish  for  a  contempt,  has  been  usually 
adopted  mid  practiced  in  a  court  of  record,  to  enforce  a 
civil  remedy  <»f  a  party  to  an  action,  or  special  proceeding 
in  that  court,  or  to  protect  the  right  of  a  party. 

Notes  to  sections  4,  5,  6,  7,  and  8. 

With  the  exception  of  the  preamble,  section  4  with  its  six  subdivisions 
is  the  same  as  section  8  of  the  Code  of  Civil  Procedure,  which  was 
applied  to  this  court  by  section  1369  of  the  Charter  of  1897,  as  amended 
in   1901,  and  Laws  1882,  chap.  410   (Consolidation  Act).  §   1288. 

Section  5  is  the  same  as  section  9  of  the  Code  of  Civil  Procedure 
without  change,  and  was  also  made  applicable  by  the  Charter  of  1897 
as  amended  in  1901,  and  Consolidation  Act  (Laws  1882,  chap.  410), 
§  1288. 

Section  6  is  composed  of  sections  10  and  11  of  the  Code  of  Civil 
Procedure,  with  the  exception  of  the  provision  in  reference  to  the 
marshal. 

Section  7  is  substantially  new,  and  takes  the  place  of  section  12  ot 
the  Code   of  Civil   Procedure. 

Section  8  with  its  seven  subdivisions  is  substantially  the  same  as 
section  14  of  the  Code  of  Civil  Procedure  with  its  eight  subdivisions 
omitting   the    seventh    subdivision. 

Answer;  striking  out. —  The  court  has  power  to  strike  out  an  answer 
of  a  defendant  as  punishment  for  a  contempt.  Socialistic  Co-operative 
Publishing  Co.  v.  Kuhn,  51   App.  Div.  583. 

Appeal;  the  adjudication  final. —  If  there  is  jurisdiction  to  commit  for 
contempt,  the  adjudication  upon  the  question  of  contempt  is  final,  and 
cannot  be  reviewed  on  appeal.     Mitchell's  Case,  12  Abb.  Pr.  249. 


§§  4,  5,  6,  7.  Contempt  of  Court.  99 

Attachment. —  A  warrant  of  attachment  for  contempt  need  not  re- 
cite the  contempt  nor  any  of  the  proceedings  upon  which  the  warrant 
rests.     People  ex  rel.  Pond  v.  Tamsen,   15  Misc.  Rep.  365. 

Attorney's  privilege. —  The  refusal  to  produce  papers  acknowledged  to 
be  in  his  possession,  for  the  reason  that  it  would  be  a  breach  of  his 
privilege  as  attorney,  is  assuming  the  right  of  determining  for  himself 
the  question  of  privilege,  which  is  not  his  province,  but  that  of  the 
court;  and  his  refusal  to  produce  the  papers  is  contempt,  for  which 
he  can  be  punished.     MitchclVs  Case,  12  Abb.  Pr.  249. 

Writing  letter  to  judge. —  The  writing  of  a  letter  by  an  attorney  to 
a  judge,  scandalizing  his  decision,  is  gross  misconduct,  but  not  a 
criminal  contempt.  In  re  Griffin,  15  N.  Y.  St.  Rep.  400;  Matter  of 
Wilkes,  24  N.  Y.   St.  Rep.  292. 

Interrupting  trial. —  The  authority  to  punish  counsel  for  contempt 
of  court  in  interrupting  the  proceedings  in  a  trial  pertains  solely  and 
exclusively  to  the  court  in  which  it  occurs,  in  its  immediate  view  and 
presence.     Heerdt  v.  Wetmore,  2  Robt.  697. 

Civil  and  criminal  contempts;  distinction. —  Revised  Statutes  dis- 
tinguished, ana  the  Code  of  Civil  Procedure  preserves  the  distinction 
between  criminal  contempts  and  proceedings  as  for  contempts  in  civil 
actions.  As  it  respects  disobedience  to  the  orders  of  the  court,  the 
sole  difference  appears  to  be  that  a  willful  disobedience  is  a  criminal 
contempt,  while  a  mere  disobedience  by  which  the  right  of  a  party  is 
defeated  or  hindered  is  treated  otherwise.  People  v.  Dwyer,  90  X.  Y. 
407,  2  Civ.  Proc.  Rep.  379. 

Civil  contempts;  punishment. —  The  proceedings  to  punish  for  civil 
contempts  under  section  8  of  this  act  (being  the  same  as  section  14 
of  the  Code  of  Civil  Procedure)  would  be  provided  for  by  title  III, 
sections  2266  to  2292  of  the  Code  of  Civil  Procedure,  but  by  section 
2266  of  said  Code  these  sections  apply  to  courts  of  record,  and 
there  is  no  provision  in  the  present  act  making  them  applicable  to  this 
court,  except    perhaps    by  section  20. 

Commitment;  requisites  of  the. —  Must  designate  the  particular  mis- 
conduct of  which  the  defendant  is  convicted.  De  Witt  v.  Dennis,  30 
How.  Pr.   131.     And  see  Code  Civ.  Proc,   §   2874. 

A  commitment  for  contempt  in  not  delivering  possession  of  property 
pursuant  to  order  of  court  must  show  on  its  face  that  the  person  com- 
mitted had  possession  or  control  of  the  property.  After  a  commitment 
has  been  adjudged  void,  on  habeas  corpus,  the  papers  on  which  it  was 
granted  are  functus  officio,  and  a  new  motion  should  be  made  if  a  new 
commitment  is  sought.  People  ex  rel.  Walter  v.  Conover,  15  Abb.  N.  S. 
430. 

On  a  refusal  to  answer  a  material  question,  it  must  appear  by  the 
warrant  of  commitment  or  by  the  evidence  that  an  oath  was  made  of 
the  materiality  of  the  testimony.     Rutherford  v.  Holmes,  66  N.  Y.  368. 


100  Contempt  of  Coukt.  §£  4,  5,  6,  .. 

Court;  keeping  it  open. —  The  justice  has  power  to  hold  the  court  open 
for  the  return  of  an  attachment  against  the  witness.  Board  of  Excise 
v.  Sackrider,  35  N.  V.  154. 

Court  must  issue  the  n  andate  for  contempt,  and  not  a  judge  of  the 
court.     People  v.  Gilmore,  26  Hun,    1  ;   s.  c,  88  N.  Y.  626. 

Definitions. —  For  a  definition  of  the  word  "  mandate  "  in  these  sec- 
tion-, see  §  3343,  subd.  2;  for  "judge,"  see  subd.  3;  for  "action,"  see 
§  3333 ;  and  for  the  definition  of  the  words  "  special  proceedings,"  see 
Code  Civ.   Proc.,  §  3334. 

Disorderly  behavior. —  The  powers  of  justices  are  ample  to  repress 
and  punish  disorderly  behavior  in  their  courts,  whether  proceeding 
from  a  party  or  his  counsel  or  a  bystander.  Onderdonk  v.  Ranlett,  3 
Hill,   323. 

Docket. —  The  validity  of  conviction  is  not  affected  by  the  omission 
of  the  justice  to  enter  in  his  docket  the  minute  thereof  made  up  by 
him.     Robins  v.  Gorham,  25  N.  Y.  588,  affg.  s.  c,  26  Barb.  586. 

Excuse. —  That  the  order  disobeyed  was  erroneously  granted  is  no 
excuse  for  disobedience  of  the  same.  The  party  who  disobeys  the  order 
is  guilty  unless  it  is  void  on  its  face  from  an  utter  want  of  jurisdic- 
tion. Erie  Ry.  Co.  v.  Ramsey,  45  X.  Y.  637,  affg.  3  Lans.  178;  Higbie 
v.  Edgerton,  3  Paige,  253;  Smith  v.  Reno,  6  How.  124;  Arctic  Fire 
Ins.  Co.  v.  Hicks,  7  Abb.  204;  Sullivan  v.  Judah,  4  Paige,  444; 
(1  rim  in  v.  Grimm,  1  E.  D.  Smith,  190;  People  v.  Bergen,  53  N.  Y.  404, 
15  Abb.  N.  S.  97;  People  v.  Sturtevant,  9  X.  Y.  263,  affg.  1  Duer, 
512;  People  ex  rel.  Garrett  v.   Ruck,   76  X.  Y.  294. 

The  direction  of  a  third  person  does  not  protect  a  party  from  punish- 
ment. Erom  v.  Hogan,  4  How.  225.  Though  it  may  be  considered 
as  bearing  upon  the  extent  of  the  punishment.  Matter  of  Fitton,  16 
How.  303. 

As  to  constructive  resistance  by  orders  given  to  a  servant,  etc.,  see 
People  v.  (lilmore,  26  Hun.  1;   s.  c.,  88  N.  Y.  626. 

False  swearing;  perjury;  sureties. —  A  surety  to  an  undertaking  who 
falsely  swears  that  he  is  worth  double  the  penalty  of  the  undertaking 
is  guilty  of  perjury,  which  is  a  contempt  of  court,  and  may  be  pun- 
ished therefor  by  a  fine  sufficient  to  indemnify  the  defendant  for  the 
loss  and  injury  he  has  sustained  thereby,  and  by  imprisoning  him  for 
six  months  and  until  the  fine  is  paid.  Stephenson  v.  Hanson,  6  Civ. 
Proc.  Rep.  43;   Eagan  v.  Lynch,  3  Civ.  Proc.  Rep.  236. 

Falsely  justifying  as  surety  on  order  of  arrest  punishable  as  a  con- 
tempt.    Keating  v.   Goddard,  8  Civ.  Proc.   Rep.  377. 

One  who  becomes  surety  upon  an  undertaking  on  appeal,  knowing 
that  he  is  insolvent,  and  with  no  expectation  of  paying  the  liability 
thus  incurred,  is  guilty  of  a  contempt  of  court,  in  putting  in  a  fictitious 
surety,  and  may  be  punished  therefor,  although  he  is  not  a  party  to 
the  action.  Simon  v.  Aldine  Pub.  Co.,  14  Daly,  280,  affg.  8  1ST.  Y.  St. 
Rep.   334. 


§§  4,  5,  6,  7.  Contempt  of  Court.  101 

In  a  proceeding  to  punish  a  surety  for  contempt  in  swearing  falsely 
as  to  his  property  on  justification,  the  burden  of  proof  rests  on  the 
plaintiff  and  is  not  shifted  by  an  attack  on  his  proof  in  denial  of  the 
charge.  Schmidt  v.  Livingston,  20  Misc.  Rep.  324,  45  N.  Y.  Supp.  (79 
St.  Rep.)   915,  affg.  19  Misc.  Rep.  353,  43  N.  Y.  Supp.  494. 

False  justification  of  a  surety  on  an  indemnity  bond  is  not  punish- 
able as  a  contempt  under  section  14  of  the  Code  in  favor  of  a  person 
not  a  part}-  to  the  action  whose  property  has  been  levied  upon  by  the 
sheriff  under  an  attachment,  and  who  subsequently  sues  for  conversion. 
Schrieber  v.  Raymond  &  Campbell  Mfg.  Co.,  18  App.  Div.  158,  26  Civ. 
Proc.  Rep.  290;  Schrieber  v.  Sanford,  45  N.  Y.  Soipp.  442. 

One  who  offers  himself  as  a  surety  knowing  himself  to  be  insolvent, 
and  with  no  expectation  of  paying  the  liability  thus  incurred,  is  guilty 
of  contempt  and  may  be  punished.  Nathans  v.  Hope,  5  Civ.  Proc.  Rep. 
401.     See  contra,  Noricood  v.  Ray  Mfg.  Co.,   11  Civ.  Proc.  Rep.  273. 

A  fraudulent  surety  on  a  bail  bond  may  be  punished  when  he  at- 
tempts to  justify  and  is  shown  incompetent  and  worthless.  Diamond 
v.  Knoepel,  3  N.  Y.  St.  Rep.  291. 

An  owner  of  premises  who  procures  the  discharge  of  a  mechanic's 
lien  by  giving  a  bond  with  sureties  whom  he  knows  to  be  insufficient 
to  justify  is  guilty  of  contempt  of  court,  and  may  be  punished  by  a  fine 
equal  to  the  amount  of  the  bond.  McAveney  v.  Brush  et  al.,  13  Misc. 
Rep.  79;   s.  c,  1  App.  Div.  97. 

The  making  of  a  false  affidavit  as  to  his  sufficiency  by  a  surety  upon 
a  bond  given  to  discharge  a  mechanic's  lien  is  a  contempt  of  court 
though  he  was  not  examined  at  the  time  of  his  justification,  and  will 
be  punished  accordingly.     Matter  of  Sheppard,  33  Misc.  Rep.  724. 

A  surety  on  an  appeal  bond  who  make  false  affidavit  as  to  his  re- 
sponsibility, in  order  to  deceive  the  court  under  section  14  of  the  Code 
of  Civil  Procedure,  is  guilty  of  contempt.  Buffalo  Loan  Co.  v.  Medina 
Qas  Co.,  68  App.  Div.  414. 

False  verification  of  answer. —  A  false  verification  of  an  answer  is 
not  punishable  as  a  contempt  of  court.  Hoffat  v.  Herman,  1  N.  Y.  St. 
Rep.  97,  8  Civ.  Proc.  Rep.  369;  affd.,  116  N.  Y.  131,  26  N.  Y.  St.  Rep. 
329,  17  Civ.  Proc.  Rep.  357. 

The  interposition,  by  a  party  to  an  action,  of  a  false  verified  answer, 
is  not  a  "  deceit  or  abuse  of  a  mandate  or  proceeding  of  the  court," 
within  the  meaning  of  subdivision  2  of  section  14  of  the  Code  of  Civil 
Procedure,  and  therefore  is  not  punishable  as  a  contempt.  Fromme  v. 
Gray,  148  N.  Y.  695;  s.  c,  14  Misc.  Rep.  592.  See  also  People  v.  Tarn- 
sen,  17  Misc.  Rep.  212. 

Furnishing  false  testimony. —  The  conduct  of  an  "  accident  ad- 
juster,'' employing  his  time  in  discovering  accidents  and  in  inducing 
the  injured  to  go  to  a  lawyer  of  his  selection  in  furnishing  to  proposed 
witnesses  for  the  plaintiff,  in  an  accident  predicated  on  the  negligence 
of  a  street  railway  corporation,  typewritten  statements  of  false  testi- 


102  Contempt  of  Court.  §§  4,  5,  0,  7. 

mony  which  they  were  to  give  upon  the  trial,  is  strongly  to  be  con- 
demned; but  where  the  defendant  succeeded  upon  the  trial,  the  court 
considered  that  a  motion  to  punish  the  "  accident  adjuster  '  for  a  civil 
contempt,  under  section  14  of  the  Code  of  Civil  Procedure,  must  be 
denied,  as  his  conduct  could  not  be  said  to  have  defeated,  impaired, 
impeded,  or  prejudiced  the  right  of  the  defendant.  Noster  v.  Metro- 
politan St.  Ry.  Co.,  30    Klisc.  Rep.  722. 

Juror;  misconduct  of. —  Where,  during  a  criminal  trial,  a  juryman 
went  during  recess  to  the  scene  of  the  affray  without  the  permission  of 
the  court,  for  the  purpose  of  acquainting  himself  with  the  locality  and 
surroundings,  he  is  not  guilty  of  a  criminal  contempt  for  which  he 
would  be  summarily  punished  by  the  court.  People  v.  Oyer  and  Ter- 
miner, 101  N.  Y.  245,  3  How.  N.   S.  413. 

Where  the  juror  makes  default  in  attendance,  he  may  summarily  be 
brought  before  the  court  for  punishment.  Robbins  v.  Uorham,  25  N.  Y. 
588;   Board  of  Excise  v.  Sackrider,  35  N.  Y.  154. 

Marshal. —  It  seems  that  a  sheriff  who  refuses  to  receive  a  warrant  of 
attachment  delivered  to  him  on  a  Sunday  afternoon,  and  promises,  but 
fails,  to  go  himself  or  send  a  deputy  to  see  one  of  the  plaintiff's  attor- 
neys later  in  the  day,  is  guilty  of  contempt.  Dailey  v.  Fenton,  47  App. 
Div.  418,  62  N.  Y.  Supp.    (96  St.  Rep.)    337. 

Misnomer. —  A  person  whose  name  is  wrongfully  stated  will  not  be 
adjudged  in  contempt  for  failing  to  obey  an  order,  though  he  is  not  the 
person  intended,  if  he  has  not  appeared  in  the  action.  Muldon  v.  Pierz, 
1  Abb.  N.  C.  309. 

Failure  to  repay  into  court  money  paid  to  defendant  under  a  judg- 
ment, when  so  ordered  upon  a  reversal  of  the  judgment,  is  a  contempt 
which  may  be  enforced  by  commitment.  Devlin  v.  Hinman,  40  App. 
Div.   101. 

Nonpayment  of  money. —  Disobedience  of  an  order  requiring  the  pay- 
ment of  money  into  court,  or  to  an  officer  thereof,  except  where  it  is 
due  upon  contract,  or  for  a  breach  thereof,  may  be  punished  as  for  a 
contempt,  although  the  amount  thereof  could  be  collected  upon  execu- 
tion.    People  ex  rel.  Pond  v.   Tamsen,    15   Misc.  Rep.   365. 

Order;  requisites  of;  adjudication,  etc. —  An  order  adjudging  a  party 
guilty  of  a  civil  contempt  which  omits  to  state  that  it  had  been  deter- 
mined that  the  misconduct  defeated,  impaired,  impeded,  or  prejudiced 
the  rights  or  remedies  of  the  other  party  to  the  proceedings  is  fatally 
defective.     Wolfe  et  al.  v.  Knight,   15  Misc.  Rep.  438. 

To  warrant  punishment  for  contempt  in  disobeying  a  judgment  or 
order,  the  mandate  must  be  clearly  expressed,  so  that  it  may  appear 
with  reasonable  certainty  that  it  has  been  violated.  Ketchum  v.  Ed- 
wards,    1  •'.:'>  X.  Y.  534,  revg.  6  App.  Div.   160.  39   N.  Y.   Supp.   1012. 

An  order  punishing  a  person  for  a  civil  contempt  which  does  not 
adjudge  that  he  committed  the  act  claimed  to  constitute  the  contempt, 
or  that  such  act  was  calculated  to,   or  actually  did,   defeat,   impair, 


$§  4, 5,  0,  7.  Contempt  of  Coubt.  103 

impede,  or  prejudice  the  rights  or  liabilities  of  the  moving  party,  is 
fatally  defective.  Dailey  v.  Fcnton,  47  App.  Div.  418,  62  N.  Y.  Supp. 
(96  St.  Rep.;    337. 

An  order  punishing  a  party  for  contempt  in  a  civil  action  must 
•contain  an  adjudication  that  he  is  guilty  of  a  contempt,  and  also  that 
his  act  not  only  has  a  tendency  to,  but  actually  does,  defeat,  impair, 
impede,  or  prejudice  the  rights  or  remedies  of  the  party  complaining; 
and  a  mere  recital  that  the  answer  is  stricken  out  "  for  the  willful  and 
•contumacious  disobedience  of  the  defendants  of  the  order  of  injunction 
herein,  dated  September  1,  1890,  and  for  their  contempt  of  this  court," 
is  insufficient.  Socialistic  Co-operative  Pub.  Co.  v.  Kuhn,  51  App.  Div. 
583,  64  N.  Y.  Supp.    (98  St.  Rep.)    933. 

Order;  service  of;  failure  to  obey. —  To  authorize  punishment  of  a 
party  for  contempt  in  disobeying  an  order,  such  order  must  have  been 
served  upon  him  personally.     Hatter  of  Seibert,  30  Misc.   Rep.  680. 

Out  of  sight  of  the  judge. —  A  contempt  committed  in  the  presence 
of  the  jury  while  deliberating  upon  their  verdict,  out  of  the  sight  and 
hearing  of  the  judge,  is  in  law  committed  in  the  presence  of  the  court. 
People  v.  Barrett,  30  N.  Y.  St.  Rep.  728,   18  Civ.  Proc.  Rep.  230. 

Where  a  contempt  has  been  committed  in  the  presence  of  the  court, 
but  which  the  judge  has  failed  to  see,  he  is  not  obliged  to  proceed 
thereon  without  proofs  or  process,  and  the  proofs  must  be  presented  to 
him  in  a  legal  and  formal  manner.     People  v.  Barrett,  56  Hun,  351. 

Perjury  is  a  contempt  and  may  be  punished  as  such.  Lagan  v.  Lynch, 
3  Civ.  Proc.  Rep.  236.     See  also  "  False  Swearing,"  above. 

Punishment. —  Under  Code  Civ.  Proc,  §  2284,  the  court  may  limit  the 
punishment  for  contempt  to  a  fine  alone,  though  the  act  refused  to 
be  performed  be  one  which  it  is  still  in  the  power  of  the  offender 
to  do,  ana  if  the  order  of  commitment  does  not  direct  the  imprison- 
ment of  the  prisoner  for  any  time  whatever  after  payment  of  the  fine, 
the  sheriff  may  properly  discharge  him  after  the  expiration  of  six 
months.     Hommcl  v.  Buttling,  46  App.  Div.  206. 

Evidence  of  loss;  punishment. —  Where  the  fine  imposed  was  not 
Tinder  the  statute  (Code  Civ.  Proc,  §  2284),  but  simply  an  indemnity 
for  plaintiff's  loss,  of  which  there  was  no  evidence, —  Held,  that  the  order 
should  be  reversed.  Donohue  v.  Lyons,  30  App.  Div.  622.  See  also 
Burnham  v.  Denike,  53  App.  Div.  407,  65  N.  Y.  Supp.  1028. 

Stay  of  proceedings;  disregard  of,  contained  in  an  order  to  show 
caues  why  an  amendment  of  pleadings  should  not  be  allowed,  by  mov- 
ing the  case  for  trial  at  the  term  for  which  it  had  been  noticed,  is  a 
contempt  of  court.  Oakley  v.  Cokalete,  20  Misc.  Rep.  206;  revd.,  16 
App.  Div.  65,  44  N.  Y.  Supp.  (78  St.  Rep.)  1070.  See  also  Sheffield  v. 
Cooper,  21  App.  Div.  518. 

Stenographer  may  be  punished  for  contempt  for  wrongfully  refusing 
to  deliver  a  copy  of  his  minutes  unless  paid  in  excess  of  the  statutory 
rate.     Cavanagh  v.  O'Neill,  20  Misc.  Rep.  233. 


10-i  Contempt  of  Court.  §§  4,  5, 6, 7. 

Subpoena. —  Refusal' of  party  to  action  under  subpoena  to  produce 
paper  may  be  punished  as  a  contempt,     Shelp  \.  Morrison,  13  Hun,  110. 

Summary  commitment. —  Where  a  contempt  has  been  committed  in 
the  presence  of  tin-  court,  creating  a  disturbance  ami  disobedience  of 
the  orders  of  the  court,  an  alternative  order  is  not  necessary,  but  the 
court  may  commit  the  offender  summarily.  Matter  of  Falkenberg  v. 
Frank,  20  Misc.  Rep.  69:1 ;  s.  c.  Falkenberg  v.  Frank,  45  N.  Y.  Supp. 
(79   St.   Rep.)    1126. 

Technical  contempt. —  The  court  may  hear  a  motion  although  the 
moving  party  is  in  technical  contempt  of  court,  as  the  court  has  the 
right  to  forgive  or  overlook  such  contempt  if  neither  party  is  injured 
thereby.  Whitman  v.  Johnson,  10  Misc.  Rep.  730;  People  ex  rel.  Bald- 
win v.  Miller,  9  Misc.  Rep.  1. 

Witness  or  juror;  refusal  to  attend,  or  to  be  sworn,  or  to  answer  a 
material  question. —  The  summary  proceeding  for  the  punishment  of  a 
defaulting  witness  or  juror  may  be  had  after  the  termination  of  the 
suit  in  which  the  default  occurred.  The  justice  may  issue  a  warrant 
to  bring  the  offender  before  him.  A  previous  summons  is  unnecessary. 
A  process  commanding  the  officer  to  attach  the  defaulting  juror  and 
bring  him  before  the  justice  is  a  warrant  in  substance,  and  sufficient. 
Robbins  v.  Gorham,  25  X.  Y.  588;  Board  of  Excise  v.  Sackridcr,  35 
N.  Y.   154. 

The  contumacious  and  unlawful  refusal  of  a  person  who  has  been 
sworn  as  a  witness  to  answer  any  legal  and  proper  interrogatory  may 
be  punished  criminally  or  civilly.     People  v.  Davidson,  35  Hun,  471. 

And  so  failure  to  attend  after  tender  of  fees.  Andrews  v.  Andrews, 
2  Johns.  Cas.  109;  Code  Civ.  Proc,  §  853. 

In  order  to  give  the  court  jurisdiction  to  punish  a  witness  for  con- 
tempt for  refusing  to  answer  a  proper  and  pertinent  question,  there 
must  be  an  oath  of  the  party,  at  whose  instance  he  attended,  of  the 
materiality  of  the  testimony  (2  R.  S.  274,  §  279),  and  a  justice  is 
liable  in  an  action  for  false  imprisonment  at  the  suit  of  one  imprisoned 
under  and  in  pursuance  of  his  warrant  of  commitment  for  such  a  con- 
tempt, where  it  does  not  appear  in  the  warrant  or  by  the  evidence  that 
such   an  oath  was  made. 

It  is  immaterial  that  the  witness  was  a  party  sworn  in  his  own  be- 
half, that  the  question  he  refused  to  answer  was  asked  upon  cross- 
examination,  and  that  it  was  therefore  impossible  to  meet  the  require- 
ments of  the  statute ;  this  does  not  authorize  a  disregard  of  it. 

It  seems  that  in  case  of  such  refusal  to  answer,  the  remedy  of  the 
opposite  party  is  to  move  to  strike  out  the  direct  examination.  Ruther- 
ford v.  Holmes,  66  N.  Y.   368. 

Where  the  witness  admits  his  refusal  to  answer  questions  and  seeks 
to  justify,  the  filing  of  interrogatories  is  unnecessary.  Clapp  v.  Lathrop, 
14  Abb.  Pr.  423. 


§§  9,  10.     Process  ;  Where  Service  May  be  Made.        105 

Immaterial  and  irrelevant  question. —  Cannot  be  punished  for  con- 
tempt, for  refusal  to  answer  a  question  immaterial  or  irrelevant  to  the 
issue  upon  the  trial  whereof  he  is  examined.  Matter  of  Odell,  6  Den. 
344. 

Willful  contempt  mandate  must  be  signed  by  court. —  To  render  a 
person  guilty  of  a  contempt,  the  mandate  must  have  been  issued  by 
the  court  and  not  a  judge  thereof.  People  v.  Gilmore,  26  Hun,  1 ;  s.  c, 
88  N.  Y.  G26. 

§  9.  Process;  where  service  may  be  made. —  The  court  shall 
have  power  to  send  its  process  and  other  mandates  in  an 
action  or  special  proceeding  of  which  it  has  jurisdiction  to 
any  part  of  the  city  of  New  York  for  service  or  execution, 
and  to  enforce  obedience  thereto,  and  the  power  and  au- 
thority of  said  court  extends  to  the  whole  of  said  city  of  New 
York,  without  limitation,  except  as  expressly  prescribed  in 
this  act. 

Notes  to  section  9. 

This  section  is  substantially  section  1368  of  the  Charter  (Laws  1897, 
chap.  378,  as  amended  in  1901),  and  part  of  it  is  taken  from  section 
1369  of  said  Charter. 

It  makes  plain  the  jurisdiction  of  the  court  as  to  the  service  of 
process  in  the  five  boroughs  of  the  city  of  New  York,  whose  territorial 
extension  and  limits  under  the  Charter  are  contained  in  sections  1 
and  2  thereof. 

Mechanic's  lien  action. —  In  an  action  to  enforce  a  mechanic's  lien 
against  real  property  brought  in  a  court  not  of  record,  it  shall  be  com- 
menced by  the  personal  service  upon  the  owner,  anywhere  in  the  state, 
of  a  summons  and  complaint.  See  §  3404,  Code  Civ.  Proc.,  which  was 
added  by  Laws  1897,  chap.  419. 

§  10.  Justice  to  administer  oaths,  et  cetera. —  The  justices 
of  said  court  may,  in  the  city  of  New  York,  by  virtue  of 
their  office,  administer  oaths,  take  depositions  and  acknowl- 
edgments, and  certify  the  same  in  the  manner  and  with  like 
effect  as  justices  of  courts  of  record. 

Notes  to  section  10. 

This  section  is  substantially  the  same  as  section  1379  of  the  Charter 
of  1897,  as  amended  in  1901,  which  applied  sections  914  to  917  and 
section  3319,  Code  of  Civil  Procedure,  to  the  justices  of  this  court, 


10G  Justice  to  Administeu  Oaths,  Etc.  £  10. 

giving  them  the  same  power  to  administer  oaths  as  justices  of  courts 
of  record  as   now  stated  in  this  section. 

The  sections  of  the  Code  of  Civil  Procedure  above  specified  are  aa 
follows : 

IN  WHAT  CASES  DEPOSITIONS  MAY  BE  TAKEN. 
§  914.  Code  of  Civil  Procedure. —  A  party  to  an  action,  suit  or  spe- 
cial proceeding,  civil  or  criminal,  pending  in  a  court  without  the  State, 
either  in  the  United  States,  or  in  a  foreign  country,  may  obtain,  by  the 
special  proceeding  prescribed  in  this  article,  the  testimony  of  a  witness 
and  in  connection  therewith,  the  production  of  books  and  papers  within 
the  State  to  be  used  in  the  action,  suit   or  special  proceeding. 

Note. 

The  article  referred  to  in  this  section  is  article  3,  title  3,  chapter  9, 
entitled  "  Depositions  taken  within  the  State,  for  use  without  the 
State." 

SUBPCENA    TO    WITNESS. 

§  915.  Code  of  Civil  Procedure. —  Where  a  commission  to  take  testi- 
mony, within  the  State,  has  been  issued  from  the  court,  in  which  the 
action,  suit,  or  special  proceeding  is  pending;  qr  where  a  notice  has 
been  given,  or  any  other  proceeding  has  been  taken,  for  the  purpose  of 
taking  the  testimony,  within  the  State,  pursuant  to  the  laws  of  the 
State  or  country,  wherein  the  court  is  located,  or  pursuant  to  the  laws 
of  the  United  States,  if  it  is  a  court  of  the  United  States.  The  Su- 
preme Court,  or  the  County  Court,  or  a  judge  of  either  court,  shall  in 
a  proper  case,  on  the  presentation  of  a  verified  petition,  issue  a  sub- 
poena to  the  witness,  commanding  him  to  appear  before  the  commissioner, 
named  in  the  commission;  or  before  a  commissioner,  within  the  state, 
for  the  state,  territory,  or  foreign  country,  in  which  the  notice  was 
given,  or  the  proceeding  taken;  or  before  the  officer  designated  in  the 
commission,  notice,  or  other  paper,  by  his  title  of  office;  at  a  time  and 
place  specified  in  the  subpoena,  to  testify  in  the  action,  suit,  or  special 
proceeding.  If  the  witness  shall  fail  to  obey  the  subpoena,  or  refuse  to 
have  an  oath  administered,  or  to  testify,  or  to  produce  a  book  or  paper 
pursuant  to  a  subpoena,  or  to  subscribe  his  deposition,  the  court  or 
judge  issuing  the  subpoena  shall,  if  it  is  determined  that  a  contempt  has 
been  committed,  prescribe  the  punishment  as  in  the  case  of  a  recalcitrant 
"witness  in  the  Supreme  Court.  The  general  rules  of  practice  must  pre- 
scribe rules  for  such  proceedings. 

Sections  91u,  917,  918  were  repealed  by  Laws  1899,  chap.  502. 

§  919.  Code  of  Civil  Procedure. —  The  officer,  or  commissioner,  be- 
fore whom  a  witness  appears,  in  a  case  specified  in  this  article,  must 
take  down  his  testimony,  in  writing,  and  must  annex  thereto  copies  of 
all  books  and  papers  produced  or  such  parts  thereof  as  shall  be  required, 


§  11.  Board  of  Justices.  107 

and  must  certify  and  transmit  it  to  the  court  in  which  the  action,  suit, 
or  special  proceeding  is  pending,  as  the  practice  of  that  court  requires. 

WITNESS  FEES  ON  DEPOSITION  TO  BE  USED  IN  ANOTHER  STATE. 
§  3319.  Code  of  Civil  Procedure. —  A  witness,  attending  before  a  com- 
missioner or  ai.  officer,  authorized  to  take  his  deposition  to  be  used 
without  the  State,  in  a  case  other  than  one  specified  in  section  3327  of 
this  act,  is  entitled  to  two  dollars  for  each  day's  actual  attendance,  and 
to  eight  cents  for  each  mile  going  to  the  place  of  attendance. 

Code  Civil  Procedure,  section  332,  is  as  follows: 

Justice's  court;  witness  fees. —  A  witness  is  entitled  to  twenty-five 
cents  for  each  day's  actual  attendance,  before  a  justice  of  the  peace  in 
an  action  or  special  proceeding,  or  before  a  commissioner  appointed  by 
a  justice  of  the  peace,  or  before  a  justice  of  the  peace  taking  a  deposi- 
tion to  be  used  in  a  court  not  of  record,  of  another  State,  or  a  terri- 
tory of  the  United  States. 

§  11.  Board  of  justices. —  The  justices  of  said  court  shall 
constitute  the  board  of  justices  of  the  municipal  court  and 
discharge  the  functions  thereof.  They  may  elect  a  presi- 
dent from  their  own  number  and  at  pleasure  remove  him  and 
elect  a  successor.  All  meetings  of  said  board  shall  be  public 
and  all  proceedings  shall  be  recorded  in  its  books  of  minutes, 
by  its  secretary  and  shall  be  preserved.  Such  board  may 
designate  a  clerk  of  said  court  for  one  of  said  districts  to  act 
as  secretary  of  said  board,  and  from  time  to  time  substitute 
another  and  fix  a  compensation  to  be  paid  for  such  service, 
not  exceeding  the  sum  of  five  hundred  dollars  per  annum. 
Such  board  shall  establish  public  rules  relative  to  its  meet- 
ings, which  as  far  as  possible  shall  be  held  at  regular  times, 
to  the  keeping  and  preservation  of  its  minutes  and  to  the 
public  inspection  of  the  same  under  the  care  of  the  secretary 
at  reasonable  times. 

Notes  to  section  u. 

This  section  is  substantially  the  same  as  section  13/4  of  the  Charter 
of  1897,  as  amended  in  1901,  with  the  exception  of  the  reference  to 
the  appointment  of  clerks,  etc.,  in  the  public  rules  which  the  board 
shall  make  as  that  matter  is  provided  for  in  section  1373  of  the  said 
Charter,  which  has  been  left  unrepealed,  and  undisposed  of  in  this  act, 
but  preserved  as  a  Charter  enactment.  It  should  be  observed  and  re- 
membered that  all  meetings  of  the  board  shall  be  public,  for  which 
it    shall    establish    rules,    which    as    far   as    possible    shall    be    held    at 


108  Board  to  Make  Rules.         §12. 

regular  times,  and  the  minutes  of  the  board  may  be  inspected  by  the 
public. 

By  section  14  the  concurrence  of  a  majority  of  the  board  shall  be 
necessary  to  adopt  any  resolution  thereof. 

§  12.  Board  to  make  rules.—  Said  board  of  justices  shall 
adopt,  and  from  time  to  time  may  amend  or  add  to  rules 
relating  to  the  f ollowing  subjects : 

1.  As  to  the  hours  at  which  court  shall  be  opened  on  each 
day,  and  what  officers  shall  be  in  attendance. 

2.  As  to  the  order  of  business  and  manner  of  its  discharge. 

3.  As  to  the  manner  in  which  the  clerks,  assistant  clerks, 
stenographers,  interpreters,  attendants  and  employees,  shall 
perform  their  duties,  the  manner  of  keeping  records  and 
papers,  the  collection  and  disposition  of  moneys  and  keeping 
accounts  of  the  same. 

4.  As  to  the  maintenance  of  order  in  and  about  the  courts 
and  offices  thereof. 

5.  As  to  the  forms  and  practice  in  said  court. 

Notes  to  section  12. 

This  section  is  constructed  from  section  1375  of  the  Charter  (Laws 
1897,  chap.  378,  as  amended  in  1901)  omitting  the  making  of  the 
rule  for  a  rotation  of  the  justices  in  holding  court,  and  assigning  them 
to  the  different  courts.  By  the  next  section  the  justice  is  to  regularly 
hold  court  in  the  district  for  which  he  was  elected  or  appointed.  In 
addition  to  the  rules  required  to  be  made  by  the  board  by  this  section 
the  board  is  also  required  by  the  preceding  section  11  to  establish 
"  public  rules "  relating  to  its  meetings,  which  perhaps  should  have 
been  included  in  this  section. 

By  section  14  the  concurrence  of  a  majority  of  the  board  shall  be 
necessary  to  adopt  any  resolution  thereof. 

Fees. —  This  section,  authorizing  the  board  to  make  rules  as  to 
the  hours  and  order  of  business,  does  not  empower  them  to  create  and 
exact  fees,  and  therefore  a  rule  by  such  board  requiring  plaintiff  to 
pay  a  fee  of  two  dollars  before  judgment  entered  or  before  issue  is 
joined,  or  the  case  put  on  the  calendar  and  called,  to  be  refunded  in 
case  issue  is  not  joined,  is  void,  and  a  plaintiff  who  had  filed  a  verified 
complaint  for  goods  sold,  defendant  being  in  default,  was  entitled  to 
mandamus  to  compel  the  entry  of  judgment  without  the  payment  of 
such  fee.     In  re  Hale,  32  Misc.  Rep.  104 ;  s.  c,  65  N.  Y.  Supp.  449. 

Pursuant  to  section  12  the  board  of  justices  adopted  the  following 
rules  to  take  effect  September  1,  1902: 


Rules  of  Practice.  109 

RULES  OF   PRACTICE. 

(Adopted  June  19,   1902.) 

I.  Court  shall  be  held  in  each  district  on  Monday,  Tuesday, 
"Wednesday,  Thursday,  and  Friday  of  each  week,  except  in  those 
districts  where  the  justice  elected  or  appointed  therein  shall 
otherwise  direct, 

II.  Court  shall  be  opened  at  10  o'clock,  a.  m. 

III.  The  order  of  business  in  each  court  shall  be  as  follows: 

1.  Summary   proceedings. 

2.  Adjourned  causes. 

3.  Eeturned  causes. 

4.  Inquests. 

5.  Motions. 
G.  Trials. 

IV.  To  entitle  a  cause  to  a  place  on  the  calendar,  the  sum- 
mons must  be  returned  with  proof  of  service  thereof  to  the 
clerk's  office,  and  the  calendar  fee  paid  the  day  before  the 
return  day  of  the  summons. 

V.  Where  a  plaintiff  appears  by  attorney,  the  summons,  un- 
less a  complaint  is  filed  therewith,  shall  be  indorsed  with  the 
name  and  address  of  the  attorney  for  the  plaintiff  and  a  brief 
statement  of  the  cause  of  action.  Such  indorsement  shall  be 
deemed  an  appearance  within  section  332  of  the  Municipal 
Court  Act.  Other  process,  pleadings,  and  writings  shall  also 
be  appropriately   indorsed. 

VI.  When  a  bill  of  particulars  is  ordered,  the  same  shall 
be  filed  in  the  clerk's  office  within  three  days  after  such  order 
is  made. 

VII.  When  a  jury  is  demanded,  the  jury  fee  shall  be  forth- 
with paid  to  the  clerk  of  the  court  by  the  attorney,  or  party 
making  such  demand.  The  jury  shall  be  publicly  drawn  by 
the  clerk  from  the  panel  under  the  supervision  of  the  justice. 
Each  additional  venire  requires  an  additional  jury  fee,  but 
only  the  fee  originally  paid  can  be  included  as  part  of  the 
costs  in  the  judgment  under  section  238  of  the  Municipal  Court 
Act. 

VIII.  If  the  original  summons,  or  other  process,  or  mandate 
of  the  court  is  not  returned  to  the  office  of  the  clerk  the 
court  may  indorse  a  dismissal  of  the  action  or  proceeding  upon 
the  copy  of  such  summons,  mandate,  or  process,  or  grant  other 
appropriate  relief,  and  award  costs  in  proper  cases,  and  such 
copy  summons,  mandate,  or  process  with  such  indorsement  shall 
thereupon  be  filed  with  the  clerk  of  the  court,  and  shall  have 
the  same  effect  as  if  the  original  had  been  so  indorsed  and 


110  Rules  of   Practice. 

filed,  provided  proof  of  service  is  made  or  written  notice  of 
appearance  by  an  attorney  is  filed. 

IX.  Open  an  application  for  an  order  removing  an  action 
to  the  City  Court.  County  Court,  or  Supreme  Court,  as  the 
case  may  be,  the  sureties  upon  the  undertaking  must  attend 
and  justify  as  to  their  sufficiency  on  the  day  of  the  presenta- 
tion of  the  undertaking  unless  such  justification  is  waived  or 
adjourned  by  the  court  or  by  consent,  or  the  undertaking  is 
given  by  a  duly  authorized  surety  company. 

X.  The  clerk  shall  not  place  a  cause  upon  the  calendar  for 
trial  on  a  day  agreed  upon  in  a  stipulation  unless  such  stipu- 
lation is  approved  by  the  justice  in  the  district  in  which  the 
action   is   pending. 

XI.  Causes  set  down  for  trial  must  be  tried  when  reached 
unless  legal  grounds  exist  for  an  adjournment. 

XII.  Only  one  adjournment  shall  he  granted  in  actions  in 
which  the  amount  claimed  in  the  summons  does  not  exceed 
$50,  unless  the  justice  for  good  cause  shown  shall  otherwise 
direct. 

XIII.  Calendar  or  other  fees  paid  to  the  clerk  are  in  no  case 
to  be  returned. 

XIV.  Motions  may  be  brought  on  for  hearing  on  not  less 
than  three  days'  notice  unless  otherwise  provided  by  law. 

XV.  Ex  parte  applications  may  be  made  to  any  justice  with- 
out regard  to  the  district  in  which  the  action  or  proceeding 
is  pending,  or  about  to  be  commenced:  the  affidavit  shall  how- 
ever state  whether  any  previous  application  has  been  made,  and 
if  made,  to  what  justice  and  what  order  or  decision  was  made 
thereon,  and  what  new  facts,  if  any,  are  claimed  to  be  shown. 
1;  .-hall  a!-"  state  the  residences  of  the  parties.  For  failure 
to  comply  with  this  rule  any  order  made,  on  such  application 
may  be  revoked  or  set  aside.  The  denial  of  an  ex  parte 
application  with  the  reason  therefor  may  be  indorsed  thereon 
by  the  justice  to  whom  the  same  is  presented. 

XVI.  Xo  approval  of  an  undertaking  given  by  a  party  or 
claimant  to  procure  the  discharge  of  a  levy  under  an  attach- 
ment shall  be  granted  ex  parte.  The  party  or  claimant  apply- 
ing for  such  approval  shall  give  at  least  two  days'  notice  of 
justification  to  the  adverse  party. 

XVII.  A  >tipulation  to  extend  the  time  of  the  court  within 
which  to  render  a  judgment  or  make  a  decision  may  be  entered 
into  between  parties  or  their  attorneys  on  the  record  in  the 
minutes  of  a  trial,  or  in  a  written  stipulation  signed  to  that 
effect. 


Rules  Relative  to  Cleeks,  Etc.  Ill 

XVIII.  Affidavits  of  service  of  process  must  in  all  cases 
comply  strictly  with  the  provisions  of  rule  XVIII  of  the 
Supreme  Court  Rules. 

XIX.  Costs  shall  not  be  awarded  to  a  defendant  who  ap- 
pears by  attorney  when  there  are  no  verified  pleadings,  unless 
a  written  notice  of  appearance  is  filed. 

XX.  The  phrase  "case  on  appeal"  in  sections  317  and  318 
of  the  Municipal  Court  Act  shall  be  deemed  to  refer  simply 
to  the  justices'  return  on  appeal  as  the  same  has  been  here- 
tofore known.  The  phrase  "  including  the  evidence "  shall 
be  deemed  to  include  all  exhibits  admitted  in  evidence. 

XXI.  In  cases  where  attorneys  may  be  represented  by  clerks, 
the  clerk  or  clerks  so  appearing  shall  be  only  those  whose  cer- 
tificates of  clerkship  shall  have  been  filed  in  the  office  of  the 
clerk  of  the  Court  of  Appeals. 

RULES  RELATIVE  TO  CLERKS  AND  ATTENDANTS. 

I.  The  clerk,  assistant  clerk,  interpreter,  and  attendants  of 
each  court  shall  attend  each  day  from  9  o'clock,  a.  m.,  to  4 
o'clock,  p.  m.j  and  at  such  other  times  as  the  justice  may 
direct,  except  as  otherwise  provided  by  law.  The  stenographer 
shall  be  in  attendance  during  the  sessions  of  the  court,  and 
at  such  other  times  and  places  as  the  justice  may  direct. 

II.  The  attendants  shall  maintain  order  in  and  about  the 
court  and  the  offices  thereof. 

III.  The  attendants  and  interpreter  shall  wear  an  official 
badge  during  the  session  of  the  court. 

IV.  During  the  session  of  the  court  the  clerk  thereof,  or, 
in  his  absence,  the  assistant  clerk,  shall  be  in  attendance 
therein,  administer  oaths,  keep  minutes  and  receive  the  ver- 
dict of  a  jury,  and  when  not  so  employed  the  time  of  the 
clerk  and  assistant  clerk  shall  be  devoted  to  the  business  of 
the  clerk's  office. 

V.  The  clerk  of  each  court,  or,  in  his  absence,  the  assistant 
clerk,  shall,  on  or  before  the  third  day  of  each  month,  make 
a  statement  in  writing,  duly  verified  by  his  oath,  of  moneys 
received  for  fees  by  him,  as  such  clerk,  during  the  preceding 
month,  and  on  or  before  the  day  named  pay  into  the  finance 
department  of  the  city  of  Xew  York  all  such  moneys  received 
by  him  for  the  use,  or  on  behalf  of  the  city,  for  the  preceding 
month  as  required  by  law.  A  summary  thereof  shall  there- 
upon be  filed  with  the  secretary  of  the  board  of  justices  to- 
gether with  a  detailed  statement  of  the  business  of  the  court 
for  the  previous  month. 


112  Court;   by  Whom   Held,  Etc.        §§13,14. 

VI.  The  clerks  and  assistant  clerks  shall  keep  and  preserve 
full,  correct,  and  true  records  of  the  proceedings  of  the  court 
and  of  their  office,  properly  tile  and  preserve  all  process,  plead- 
ings, mandates,  or  other  papers,  deposit  in  bank  all  moneys  paid 
to  them,  keep  accurate  accounts  thereof,  and  shall  faithfully 
perform  the  duties  imposed  upon  them  by  chapter  580  of  the 
Laws  of  L902. 

VII.  When  moneys  are  paid  to  persons  other  than  parties  or 
their  attorneys  the  clerks  shall  require  and  file  in  their  offices 
a  written  request  from  the  party  or  the  attorney  entitled  to 
such  moneys  to  authorize  such  payment,  and  a  receipt  therefor. 

§  13.  Court;  by  whom  held. —  A  justice  of  the  municipal 
court  of  the  city  of  New  York  shall  hold  court  in  the  dis- 
trict for  which  he  was  elected  or  appointed  to  fill  a  vacancy, 
hut  if  a  vacancy  exists  or  the  illness  or  inability  of  any  jus- 
tice prevents  his  attendance  any  other  justice  of  said  court 
may  hold  court  in  said  district  and,  if  at  any  time  before  or 
after  the  commencement  of  the  trial,  it  shall  appear  to  the 
satisfaction  of  the  justice  that  lie  is  a  necessary  witness  in 
the  trial  of  the  cause,  or  otherwise  disqualified  to  try  the 
same,  he  shall,  by  an  order  entered  in  the  cause,  order  the 
same  and  the  papers  in  the  same  to  be  transferred  to  an  ad- 
joining district. 

Note  to  section  13. 
This  section  is  constructed  from  part  of  section  1375  of  the  Char- 
ter (Laws  1897,  chap.  378,  as  amended  in  1901).  "Board  to  make 
rules,"  which  is  now  the  title  and  subject-matter  of  section  12  of  this 
act.  See  notes  to  §  12.  By  said  section  1375  the  board  of  justices 
were  required  to  make  rules  as  to  which  of  the  justices  was  to  hold 
court  in  the  different  districts,  and  to  provide  for  a  rotation  of  the 
justices  holding  court.  This  has  been  abolished,  and  the  justice  now 
continues  to  hold  court  in  the  district  for  which  the  people  elected  him. 

§  14.  Concurrence  of  majority.—  The  concurrence  of  a  ma- 
jority of  all  the  members  of  said  board  shall  be  necessary  to 
adopt  any  resolution  thereof. 

Note  to  section  14. 

This  section  is  the  same  as  section  1376  of  the  Charter  (Laws  1897, 
chap.  378,  as  amended  in  1901). 


§§  15,  16.     Actions  May  be  Continued,  Etc.  113 

§  15.  Actions  may  be  continued  before  another  justice. — 
The  trial  of  an  action  or  special  proceeding  may  be  con- 
tinued from  day  to  day,  or  from  one  day  to  any  other  day 
or  days  until  the  same  is  finished.  A  special  proceeding- 
commenced  before  one  justice  may  be  continued  before  any 
other  justice  having  jurisdiction  of  the  subject-matter,  the 
same  as  though  it  had  been  originally  commenced  before 
him.  A  transcript  of  any  proceedings  had  before  either  of 
said  justices,  or  of  any  paper  filed  with  the  clerk,  or  of  the 
minutes  of  any  testimony  taken  by  or  before  said  justice, 
certified  by  the  clerk  or  said  justice  to  be  correct,  shall  be 
presumptive  evidence  of  the  facts  therein  contained. 

Notes  to  section  15. 

This  section  is  taken  from  the  old  District  Court  Act  (Laws  1857, 
chap.  344,  latter  part  of  §  78),  except  the  word  "  clerk"  is  substituted 
for  the  word  "  justice,"  and  was  section  1387  of  the  Consolidation  Act 
(Laws  1882,  chap.  410). 

The  heading  of  this  section  omits  any  mention  of  "  Transcripts  of 
proceedings,  paper,  or  minutes,"  which  is  the  subject  of  the  second 
half  thereof  and  which  formed  part  of  the  heading  of  section  1387  of 
the  said  Consolidation  Act. 

It  must  be  observed  that  only  a  "  special  proceeding  "  and  not  "  an 
action"  may  be  continued  before  another  justice;  "an  action"  is  not 
included. 

Conduct  of  trial.—  See  §  240. 

§  16.  Death  or  removal  of  justice  not  to  impair  proceedings, 
et  cetera. —  Xo  process,  action,  judgment,  execution  or  pro- 
ceeding shall  abate  or  be  discontinued  by  reason  of  the  death, 
removal  from  office,  or  vacancy  in  office  of  any  justice,  but 
the  respective  successor  in  office  of  the  said  justice  shall  pro- 
ceed to  hear,  try,  determine  and  give  judgment  in  and  upon 
the  same,  and  upon  all  matters  and  things  pending  before 
and  undecided  or  not  acted  upon  or  indorsed  by  their  pre- 
decessors in  office,  with  the  same  powers,  jurisdiction,  and 
authority,  as  their  predecessors  had. 

Notes  to  section  16. 

This  section  i9  taken  from  the  old  District  Court  Act  (Laws  1857, 
chap.  344).     It  is  substantially  the  same  as  section  1390  of  the  Con- 

8 


114  Court;   Wiikkk  Held.  §17. 

Bolidation  Act   (Laws  18S2,  chap.  410),  which  was  not  repealed  by  the 
Charter,  hut  is  now   repealed  by  this  act. 

By  this  section  the  successor  of  a  justice  has  power  to  finish  any 
matter  or  thin^  pending  before  or  left  undecided  by  his  predecessor 
when  out  of  office  from  any  cause. 

Term  of  office;  finishing  trial  after. —  A  justice  has  no  jurisdiction 
to  finish  the  trial  of  a  case,  or  to  decide  it,  after  the  expiration  of  his 
term  of  office.  The  consent  of  the  parties  cannot  give  him  power  to 
do  this.  In  re  Rudding,  14  Civ.  Proc.  Rep.  47;  Rudding  v.  Kane,  14 
Daly,  535,  16  N.  Y.  St.  Rep.  677;  Ovis  v.  Curtis,  28  N.  Y.  Supp.  728. 

The  successor  of  a  justice  whose  order  lias  been  reversed  may  rehear 
the  motion  and  make  a  new  order,  containing  the  appropriate  recital 
under  section  1390  of  the  Consolidation  Act  as  to  the  succession.  Stem 
v.  Knapp,  48  App.  Div.  482,  62  N.  Y.  Supp.  982. 

Returns  to  writs  may  be  made  by  the  justice  after  he  is  out  of  office,, 
and  they  are  valid.  Harris  v.  Whitney,  6  How.  Pr.  175;  Conover  v. 
Develin,  15  How.  Pr.  470;  s.  c,  6  Abb.  Pr.  228. 

§  17.  Court;  where  held. —  The  said  court  shall  be  held  in 
each  of  the  districts  by  a  justice  of  said  court,  at  the  places 
provided  by  the  commissioners  of  the  sinking  fund,  and  in 
accordance  with  law,  at  such  hours  in  every  judicial  day  or 
so  often  as  the  board  of  justices  of  the  municipal  court 
shall  direct,  and  must  continue  in  session  so  long  as  the 
public  interest  requires;  and  it  shall  be  the  duty  of  the  com- 
missioners of  the  sinking  fund  to  provide  a  suitable  place 
for  the  holding  of  said  court  in  each  of  said  districts,  pro- 
vided that  more  than  one  place  for  holding  such  court  may  be 
provided  at  any  time  after  this  act  takes  effect  in  any  district, 
if  the  said  board  of  justices  shall  certify  that  the  public  con- 
venience requires  such  additional  number  of  places. 

Notes  to  section  17. 

This  section  is  substantially  the  same  as  section  1371  of  the  Charter 
(Laws  1897,  chap.  378,  as  amended  in  1901),  which  superseded  section 
1291  of  the  Consolidation  Act  (Laws  1882,  chap.  410),  with  the  ex- 
ception of  the  provision  that  the  commissioners  of  the  sinking  fund 
are  now  to  provide  suitable  places  for  holding  the  court,  instead  of 
the  Municipal  Assembly,  the  latter  having  been  abolished  by  the  Charter, 
a3  amended  in   1901.     See  also  §   19,  and  notes. 

Clerk  to  keep  his  office  open. —  By  section  282,  subdivision  9,  of  this 
act,  the  clerk  must  keep  his  office  open  for  the  transaction  of  business 


§17.  Court;  Where  Held.  115 

every  judicial  day,  from  9  o'clock  in  the  forenoon  to  4  o'clock  in  the 
afternoon. 

Holding  courts  in  case  of  pestilence,  war,  or  other  public  calamity. — 
See  Charter,   §   120. 

Keeping  court  open. —  The  justice  has  power  to  hold  the  court  open 
for  the  return  of  an  attachment  against  the  witness.  Board  of  Excise 
v.  Sackrider,  35  N.  Y.  154. 

Public  holidays;  half  holidays. —  The  term  "  holidays  "  includes  the 
following  days  in  each  year:  The  first  day  of  January,  known  as  New 
Year's  day;  the  twelfth  day  of  February,  known  as  Lincoln's  birthday; 
the  twenty-second  day  of  February,  known  as  Washington's  birthday;  the 
thirtieth  day  of  May,  known  as  Memorial  day ;  the  fourth  day  of  July, 
known  as  Independence  day;  the  first  Monday  of  September, known  as  La- 
bor day,  and  the  twenty-fifth  day  of  December,  known  as  Christmas  day; 
and  if  either  of  such  days  is  Sunday,  the  next  day  thereafter ;  each  gen- 
eral election  day  and  each  day  appointed  by  the  President  of  the  United 
States,  or  by  the  Governor  of  this  State,  as  a  day  of  general  thanks- 
giving, general  fasting,  and  prayer,  or  other  general  religious  observ- 
ances. The  term  "  half-holiday  "  includes  the  period  from  noon  to 
midnight  of  each  Saturday  which  is  not  a  holiday.  The  days  and 
half-days  aforesaid  shall  be  considered  as  the  first  day  of  the  week, 
commonly  called  Sunday,  and  as  public  holidays  or  half-holidays  for 
all  purposes  whatsoever  as  regards  the  transaction  of  business  in  the 
public  offices  of  this  State  or  counties  of  this  State.  On  all  other  days 
and  half-days,  excepting  Sundays,  such  offices  shall  be  kept  open  for 
the  transaction  of  business. 

Where  a  contract  by  its  terms  requires  the  payment  of  money  or 
the  performance  of  a  condition  on  a  public  holiday,  such  payment  may 
be  made  or  condition  performed  on  the  next  business  day  succeeding 
such  holiday,  with  the  same  force  and  effect  as  if  made  or  performed 
in  accordance  with  the  terms  of  the  contract.  Statutory  Construction 
Act,  §  24,  as  amended  by  chap.  39,  Laws  1902.  See  also  notes  to  §§  31 
and  37. 

Saturday  afternoon. —  It  shall  be  lawful  for  the  county  clerk,  register, 
surrogate,  and  sheriff  of  the  city  and  county  of  New  York  to  close 
their  respective  offices  at  1  o'clock  in  the  afternoon  on  Saturday  from 
the  first  day  of  July  to  the  first  day  of  October,  both  days  included,  in 
each  year  hereafter,  and  the  District  Courts  in  said  city  and  clerk's 
offices  thereof  may  also  be  closed  on  each  Saturday  at  1  o'clock  in  the 
afternoon  during  the  same  period  in  each  year,  provided  such  courts  be 
not  engaged  in  the  actual  trial  or  hearing  of  actions  or  proceedings. 
Laws   1S87,  chap.    185. 

Under  Laws  1887,  chapter  185,  it  was  held  that  a  court  was  not  a 
public  office  within  the  terms  of  that  act,  and  the  act  does  not  prohibit 
the  holding  of  court  after  12  o'clock  on  Saturdays.  People  v.  Kearney, 
47   Hun,   129. 


116  Seals.  §  18. 

Sittings  to  be  public. —  The  sittings  of  every  court  within  this  State 
shall  be  public,  and  »very  citizen  may  freely  attend  the  same  except 
in  certain  cases  when  the  court  may,  in  its  discretion,  exclude  there- 
from all  persons  who  arc  dot  directly  interested  therein,  excepting 
jurors,  witnesses,  and  officers  of  the  court.     Code  Civ.  Proc,  S  5. 

Sunday. —  A  court  shall  not  be  opened,  or  transact  any  bushier  on 
Sunday,  except  to  receive  a  verdict  or  discharge  a  jury.  An  adjourn- 
ment of  a  court  on  Saturday,  unless  made  after  a  cause  has  been 
committed  to  a  jury,  must  be  to  some  other  day  than  Sunday.  But 
this  section  docs  not  prevent  the  exercise  of  the  jurisdiction  of  a 
magistrate,  where  it  was  necessary  to  preserve  the  peace,  or  in  a 
criminal  ease  to  arrest,  commit,  or  discharge  a  person  charged  with 
an  offense.  Code  Civ.  Proc,  §  G.  People  ex  rel.  Donohue  v.  Walton, 
35   Misc.  Rep.  320. 

§  18.  Seals. —  The  said  court  in.  each  district  shall  have 
official  seals  furnished  at  the  expense  of  the  city,  on  which 
shall  be  engraved  the  arms  of  the  state  of  Xew  York, 
"  Borough  of  Manhattan  "  (or  whatever  the  borough  may 
be),  "  First  District  "  (or  whatever  the  district  may  be),  but 
nothing  herein  contained  shall  authorize  such  court  to  issue 
certificates  of  naturalization. 

Notes  to  section  18. 

This  section  is  the  same  as  section  1372  of  the  Charter  (Laws  1897, 
chap.  378),  as  amended  in  1901,  which  superseded  section  1293  of  the 
Consolidation  Act    (Laws   1882,  chap.   410). 

Seals  were  first  provided  for  this  court  by  Laws  1851,  chap.  514,  when 
it  was  known  as  "Justice's  Court,  First  District"  (or  whatever  dis- 
trict it  was),  "  New  York  city." 

What  is  sufficient  sealing. —  Section  29  of  the  Code  of  Civil  Pro- 
cedure provided  how  the  seal  of  a  court  might  be  affixed.  This  section 
was  repealed  by  section  13  of  the  Statutory  Construction  Law  (Laws 
1892,  chap.  677),  chapter  1  of  the  General  Laws.  Section  13  apper- 
taining to  the  seal  of  a  court  is  as  follows: 

"  A  seal  of  a  court,  public  officer,  or  corporation,  may  be  impressed 
directly  upon  the  instrument  or  writing  to  be  sealed,  or  upon  wafer, 
wax  or  other  adhesive  substance  affixed  thereto,  or  upon  paper  or  other 
similar  substance  affixed  thereto  by  mucilage  or  other  similar  sub- 
stance." 

New  seals. —  Code  Civ.  Proc.,  §  30.  When  the  seal  of  a  court  is 
so  injured  that  it  cannot  be  conveniently  used,  the  court  must  cause  it 
to  be  destroyed;  and  when  the  seal  of  the  court  is  lost  or  destroyed,  the 


§§  19,  20.  Access  to  Coukt-house.  117 

court  must  cause  a  new  seal  to  be  made,  similar  in  all  respects  to  the 
former  seal,  which  shall  become  the  seal  of  the  court.  The  expense  of 
a  new  seal  for  a  county  clerk,  a  surrogate's  court,  or  a  local  court  in  a 
city,  must  be  paid  as  part  of  the  contingent  expenses  of  the  county,  or 
the  court,  as  the  case  requires.  The  expense  of  a  new  seal  for  any  other 
court  must  be  paid  from  the  State  treasury. 

§  19.  Access  to  court-houses —  The  justices  of  said  court 
shall  have  access  and  possession  of  the  court-houses;  and  it 
shall  be  the  duty  of  the  board  of  aldermen  of  the  city  of 
Xew  York  and  its  several  officers  charged  with  duties 
in  that  behalf  to  supply  and  pay  for  whatever  may  be  neces- 
sary for  the  transaction  of  the  business  of  said  court,  and 
the  justices  thereof,  and  to  supply  all  proper  accommodations, 
books,  stationery  and  furniture,  and  to  pay  all  salaries,  com- 
pensations and  expenses  and  disbursements  herein  authorized, 
and  the  board  of  estimate  and  apportionment  shall  annually 
include  in  its  final  estimate  such  sums  as  may  be  necessary 
to  pay  the  same. 

Note  to  section  19. 

This  section  is  substantially  section  1380  of  the  Charter  (Laws  1897, 
chap.  378),  as  amended  in  1901.     See  also  §   17  and  notes. 

§  20.  Code,  rules  of  supreme  court  applicable;  when The 

provisions  of  the  code  of  civil  procedure  and  rules  and  regu- 
lations of  the  supreme  court  as  they  may  be  from  time  to 
time,  shall  apply  to  the  municipal  court  as  far  as  the  same 
can  be  made  applicable,  and  are  not  in  conflict  with  the  pro- 
visions of  this  act;  in  case  of  such  conflict  this  act  shall 
govern. 

Notes  to  section  20. 

This  section  is  taken  from  section  1377  of  the  Charter  (Laws  1897, 
chap.  378),  as  amended  in  1901,  which  superseded  section  1426  of  the 
Consolidation  Act    (Laws   1882,  chap.   410). 

There  is  a  sweeping  addition  in  this  section  to  section  1377,  in  mak- 
ing the  provisions  of  the  Code  of  Civil  Procedure  also  applicable  to 
this  court  when  not  in  conflict  with  the  provisions  of  this  act. 

Rules  of  courts  of  record,  how  made  and  revised. —  See  §  17,  Code 
Civ.  Proc. 

Rules  to  be  published.—  See  §  18,  Code  Civ.  Proc. 


1 1  >    Code;  Rules  oe  Supreme  Couet,  Etc.   §20. 

Construction. —  The  rules  made  by  the  court,  under  authority  of  the 
Code,  may  be  considered  as  giving  construction  to  the  statute.  Myers 
v.  Feet,,.  -4   How.   Pr.  241;   Matter  of  Wade,  L54  N.  Y.  342. 

Rules  of  court  have  tl  e  force  and  effect  of  statutes.  People  ex  rel.  v. 
Nichols,   is   Hun.  535;   3.  <••.  7!)  N.  Y.  582. 

Discretion. —  All  matters  of  practice  are  in  the  first  instance  in  the 
discretion  of  the  courts  in  which  the  question  of  practice  arises,  yet 
matins  of  practice  come  after  a  while  to  be  governed  absolutely  by  the 
custom  of  the  courts.     Fisher  v.  Gould,  81  X.  Y.  232. 

Each  court  is  the  best  judge  of  its  own  rules,  and  a  higher  court  will 
not  reverse  any  construction  given  to  them  not  palpably  erroneous. 
Coleman  v.  Nantst,  03  Pa.  St.  178. 

Disregarding. —  The  court  may  disregard  its  rules  when  a  proper  case 
is  presented.  Clark  v.  Brooks,  26  How.  285.  This  is  so  with  a  directory 
rule,  but  a  mandatory  rule  must  be  followed.  Hatter  of  Moore,  108 
N.  Y.  280. 

The  true  object  of  technical  rules  is  to  promote  justice,  or  to  punish 
injustice.  When  they  fail  of  those  ends  courts  should  neither  encourage 
nor  enforce  them.     People  v.  Tweed,  5  Hun,  353;   affd.,  63  N.  Y.  194. 

Legality. —  The  judges  cannot  make  law  in  making  a  rule,  that  be- 
longs to  the  legislature.     Winston  v.  English,  14  Abb.  Pr.  N.  S.  124. 

No  general  rules  can  be  made  inconsistent  with  the  Code.  Rice  v. 
Ehele  et  al.,  55  N.  Y.  524;  Lakey  v.  Cogswell,  3  Code  Rep.  116;  French 
v.  Powers,  80  N.  Y.  146;  Palmer  v.  Phoenix  Ins.  Co.,  22  Hun,  224; 
Gomerly  v.  McGlynn,  84  N.  Y.  284. 

A  court  rule  cannot  nullify  a  statute,  and  the  latter  must  be  inter- 
preted and  followed.     Glenny  v.   Stedwell,  64  N.  Y.   120. 

Conflict  with  court  decisions. —  The  justices  in  convention  have  power 
to  make  rules  which  are  in  conflict  with  the  previous  decisions  of  the 
court,  regulating  practice.  Havemeyer  v.  Ingersoll,  12  Abb.  Pr.  N.  S. 
301. 

Note. —  There  are  no  sections  from  20  to  25. 


25.  Actions  ;  Summons  ;  Parties.  119 


TITLE   II. 
Actions;  Summons;  Parties. 

Section  25.  In  what  district  brought. 

26.  Actions;  how  commenced. 

27.  Summons;   requisites. 

28.  Form  of  summons. 

29.  Summons ;   corporation  counsel  ma^y  issue,  et  cetera. 

30.  Service;   alias. 

31.  Method  of  service. 

32.  Order  for  service  of  summons,  when  defendant  not  found. 

33.  How  such  service  must  be  made. 

34.  Papers  to  be  filed;   proof  of  service. 

35.  Defendant,  when  allowed  to  defend. 

36.  Who  may  serve  summons,  et  cetera. 

37.  Return  day. 

38.  Indorsement  upon  summons. 

39.  Indorsement  upon  summons   where  execution  against  the 

person  may  issue. 

40.  Parties;   appearance  of. 

41.  Guardian  ad  litem. 

42.  Parties;   who  may  be  joined. 

43.  Application  of  this  article  to  defendants  jointly  liable. 

44.  Where  employee  is  party. 

45.  Who  may  petition  for  leave  to  prosecute  as  a  poor  person. 

46.  Contents  of  petition. 

47.  Order  and  petition  to  be  filed;   when  counsel   assigned. 

48.  When  leave  may  be  annulled, 

49.  When  defendant  may  defend  as  a  poor  person,  et  cetera. 

50.  Defendant's  order. 

51.  Leave  may  be  annulled  as  in  cases  of  plaintiff. 

52.  Appeal   where  plaintiff  or  defendant  poor  person. 

53.  Costs  in  favor  of  petitioner. 

§  25.  In  what  district  brought. —  An  action  or  proceeding 
of  which  the  municipal  court  has  jurisdiction  must  be 
brought : 

1.  In  a  district  in  which  either  the  plaintiff  or  defendant 
•or  one  of  the  plaintiffs  or  one  of  the  defendants  resides, 
unless  all  the  plaintiffs  or  all  the  defendants  reside  out  of 
the  city  of  ISTew  York,  in  which  case  the  action  or  proceeding 
may  be  brought  in  said  court  in  any  district. 


120  In  What   District  Brought.  r^  25. 

2.  If  the  defendant  be  a  corporation  created  by  law,  in  a 
district  in  which  the  plaintiff  or  either  of  the  plaintiffs  re- 
sides, or  in  which  (if  it  be  a  corporation)  it  transacts  its  gen- 
eral business  or  keeps  an  office  or  has  an  agency  established 
for  the  transaction  of  business  or  is  established  by  law, 
except  the  corporation  of  the  city  of  New  York,  which  may 
sue  or  be  sued  in  any  district,  except  as  provided  for  in  sub- 
division five  of  this  section. 

3.  By  plaintiffs  not  residing  in  the  city  of  New  York,  in 
the  district  in  which  the  defendant,  or  one  of  the  defendants 
resides,  and  against  a  defendant  or  defendants,  not  residing 
in  said  city,  in  the  district  in  which  the  plaintiff  or  one  of 
the  plaintiffs  resides;  but  where  all  the  parties  reside  out  of 
said  city,  the  action  may  be  brought  in  any  district.  No 
person  who  shall  have  a  place  in  said  city  for  the  regular 
transaction  of  business  shall  be  deemed  a  non-resident  under 
the  provisions  of  this  act. 

4.  If  the  district  in  which  the  action  or  proceeding  is 
brought  is  not  the  proper  district,  the  action  may,  notwith- 
standing, be  tried  therein,  unless  the  action  is  transferred 
to  the  proper  district  before  trial  upon  demand  of  the  de- 
fendant made  upon  or  before  the  joinder  of  issue  in  writing 
or  in  open  court,  followed  by  the  consent  of  the  plaintiff, 
given  in  like  manner,  or  the  order  of  the  court.  The  de- 
mand must  specify  the  district  to  which  defendant  requires 
the  action  to  be  transferred.  The  court  must  make  such 
order  when  the  district  in  which  the  action  or  proceeding  is 
brought  is  not  the  proper  district,  as  specified  in  this  section 
or  the  next  one,  if  such  demand  be  made. 

5.  All  actions  by  or  on  behalf  of  the  city  of  New  York 
to  recover  a  penalty  or  fine  for  a  violation  of  any  corpora- 
tion ordinance,  when  the  amount  of  such  penalty  or  fine  shall 
not  exceed  five  hundred  dollars,  must  be  brought  in  the 
district  in  which  the  violation  of  such  ordinance  happened 
or  occurred.  And  all  actions  to  recover  a  penalty  or  fine 
for  a  violation  of  any  provision  of  the  sanitary  code  or  of 
any  regulation  of  the  fire  commissioner  or  of  any  laws  or 
ordinances  which  either  the  health  or  the  fire  department  is 


§  25.  In  What  District  Brought.  121 

authorized,  empowered  and  especially  charged  to  enforce, 
where  the  amount  of  such  penalty  or  fine  shall  not  exceed 
five  hundred  dollars,  must  be  brought  in  the  district,  in 
which  such  violation  happened  or  occurred. 

Notes  to  section  25. 

This  section  is  taken  from  section  1370  of  the  Charter  (Laws  1897, 
chap.  378),  as  amended  in  1901,  which  superseded  section  1289  of  the 
Consolidation  Act   (Laws  1882,  chap.  410). 

Actions  by  or  against  the  city  must  be  in  the  corporate  name  of  "  The 
City  of  New  York."     Charter,  §   1614. 

Association. —  Under  section  1289  of  the  Consolidation  Act  (Laws 
1882,  cbap.  410),  which  is  now  this  section,  an  action  brought  against 
an  association  in  the  name  of  its  president  must  be  brought  in  the 
district  in  which  either  the  plaintiff  or  such  president  resides.  Brooks 
v    Dinsmore,  15  Daly,  428. 

Clerk. —  A  person  permanently  employed  and  regularly  in  attendance 
in  a  store  in  the  city  of  New  York  is  to  be  considered  as  having  a 
"  place  of  business  "  in  that  city,  and  may  be  sued  by  a  long  summons. 
Lewis  v.  Davis,  8  Daly,  185. 

Corporation. —  The  plaintiff  may  bring  his  action  either  in  the  district 
in  which  he  resides,  or  the  defendant,  being  a  corporation,  in  one 
in  which  it  transacts  its  general  business,  or  has  an  agency  estab- 
lished for  the  transaction  of  business  or  keeps  an  office.  The  limit  is 
not  to  a  district  in  which  the  general  business  is  transacted.  It  is 
enough  that  there  is  an  agency  for  the  transaction  of  business,  or  that 
the  defendant  keeps  an  office.  Jay  v.  Long  Island  R.  R.  Co.,  2  Daly,  401. 
The  principal  office  of  the  plaintiff,  a  religious  corporation,  was  its 
treasurer's  office,  and  it  transacted  most  of  its  business  there.  Held, 
that  an  action  brought  by  it  was  properly  brought  in  the  district 
within  which  such  office  was  situated  although  its  church  edifice  was 
situated  in  a  different  judicial  district.  St.  Michael's  Protestant 
Episcopal  Church  v.  Behrens,  13  Daly,  548;  s.  c,  10  Civ.  Proc.  Rep.  181. 
Dismissal. —  To  authorize  the  dismissal  of  an  action  on  the  ground 
that  it  was  brought  in  the  wrong  district,  that  fact  must  appear  from 
the  evidence.     Werner  v.  Braunstein  et  al.,  20  Misc.  Rep.  341. 

Milk  and  cream  cans. —  In  an  action  concerning  this  subject  the  com- 
plainant may  elect  the  district  within  which  he  will  commence,  irre- 
spective of  the  residence  of  the  justice  and  the  location  of  the  sub- 
ject-matter of  the  action.  The  Domestic  Commerce  Law  (Laws  1896, 
chap.  376),  §  29,  as  amended  Laws  1900,  chap.  545. 

Nonresidents. —  The  Legislature  had  power  to  confer  jurisdiction 
upon  this  court  over  nonresident  defendants  who  have  a  place  of  busi- 
ness in  the  city  of  New  York  for  the  regular  transaction  of  business. 
Routenberg  v.  Schweitzer,  165  N.  Y.  175,  revg.  s.  c,  50  App.  Div.  218. 


122  Action;   How  Commenced.  §  20. 

Though  both  plaintiff  amL  defendant  are  nonresidents  of  this  city,  this 
court  has  jurisdiction.     Evans  v.   Wood,  15  Abb.  Pr.  416. 

Id.;  of  districts. —  Win  re  it  appears  that  both  plaintiff  and  defendant 
reside  in  the  city  of  New  York,  but  neither  within  the  district  for 
which  the  court  is  held,  it  is  the  duty  of  the  justice  to  dismiss  the 
action.  Beat  it-  v.  Larkin,  2  E.  D.  Smith,  244;  Bear  v.  Kempner,  15 
Daly,  110;  s.  c.  22  X.  Y.  St.  Rep.  37;  Brooks  v.  Dinsmore,  15  Daly, 
428;   s.  c,  S   X.   Y.   Si  pp.    103. 

Objection* — If  the  action  is  brought  in  the  wrong  district  objection 
thereto  must  be  taken  at  the  trial,  or  it  is  waived.  Fairbanks  v. 
Corlies,  1  Abb.  Pr.  454;  s.  c,  3  E.  D.  Smith,  582;  McKee  v.  Oliver, 
2  Daly,  381;  Dammann  v.  Peterson,  17  Misc.  Rep.  369. 

An  objection  to  the  jurisdiction  on  the  ground  of  nonresidence  in  the 
district  may  be  taken  on  the  second  trial,  where  the  fact  then  appears 
for  the  first  time.  Brooks  v.  Dinsmore,  15  Daly,  428.  See  also  Baer 
v.  Kempner,  22  N.  Y.  St.  Rep.  37. 

Place  of  business. —  Nonresidents  having  a  place  of  business  in  this 
city  are  to  be  deemed,  for  purposes  of  suing,  residents  of  the  districts 
in  which  their  place  of  business  is  situated.  Clarkson  v.  Mittnacht,  6 
Daly,  398. 

Proof. —  Refusal  of  the  court  to  transfer  the  action,  without  proof 
that  it  was  brought  in  the  wrong  district,  is  correct.  Whitman  & 
Barnes  Mfg.  Co.  v.  Hamilton,  27  Misc.  Rep.   198,  57  N.  Y.  Supp.  760. 

Refusal  to  transfer  action;  mandamus. —  An  alleged  wrongful  refusal 
of  a  justice  to  order  a  removal  of  an  action  to  another  district  of 
the  court  should  be  reviewed  by  appeal,  and  a  writ  of  mandamus 
will  not  lie  against  the  justice.  Where  however  the  justice  refused  to 
receive  or  file  motion  papers,  for  a  rehearing  of  the  motion,  for  a  re- 
moval, which  the  defendant  deemed  essential  to  a  proper  review  of 
the  adverse  decision,  the  court  ordered  a  peremptory  writ  to  issue 
compelling  the  justice  to  file  the  papers  to  the  end  that  they  might  be 
made  a  part  of  the  record.  People  ex  rel.  Jaffe  v.  Bolte,  35  Misc.  Rep. 
53. 

Waiver. —  Appearance  by  defendant  and  taking  judgment  by  default 
against  plaintiff  in  the  district  to  which  the  issues  have  been  sent  to 
trial  precludes  him  from  objecting  to  the  jurisdiction  on  the  ground 
that  it  was  in  the  wrong  district.  Koerkle  v.  Pangburn,  33  Misc.  Rep. 
476,  67  N".  Y.  Supp.  898;  Methen  v.  Eyelis,  33  Misc.  Rep.  98,  67  N.  Y. 
Supp.  246,  8  N.  Y.  Annot.  Cas.  372 ;  Barker  v.  Archer,  49  App.  Div.  80, 
63  N".  Y.  Supp.  298. 

§  26.  Action;  how  commenced. —  An  action  brought  in  the 
municipal  court  of  the  city  of  New  York,  must  be  commenced 
by  the  service  of  a  summons,  or  the  voluntary  appearance  of 
and  joinder  of  issues  by  the  parties. 


§26.  Action;  How  Commenced.  123 

Notes   to   section   26. 

This  section  is  substantially  the  same  as  section  1296  of  the  Con- 
solidation Act    (Laws  1882,  chap.  410). 

Deemed  commenced. —  An  action  is  deemed  commenced  when  the 
summons  is  delivered  to  the  proper  officer  for  service,  and  this  saves 
the  statute  of  limitations.  See  §  30,  post,  and  §§  398  and  400,  Code 
Civ.  Proc. 

Discontinuance. —  Action  can  be  discontinued,  before  finally  sub- 
mitted.    Rothenberg  v.  Filarsky,  30  Misc.   Rep.  blO. 

Fictitious  name;  appearance. —  The  summons  issued  was  not  in  the 
proper  name  of  the  defendant,  nor  stated  that  the  name  was  a  fictitious 
one:  defendant  did  not  appear  personally,  but  his  wife,  an  ignorant 
foreigner,  was  present  on  the  return  day,  apparently  to  explain  that 
he  was  ill,  as  in  fact  he  was.  Held,  that  she  could  not  be  regarded  as 
his  agent  under  section  1294  of  the  Consolidation  Act,  and  an  amend- 
ment of  the  summons  was  irregular,  and  did  not  justify  entry  of  a 
judgment  by  default  against  defendant  in  his  proper  name.  Strom- 
berg  v.  Carnese,  35  Misc.  Rep.  289,  71  N.  Y.  Supp.  746. 

Name  of  another. —  If  a  person,  vexatiously  or  maliciously,  in  the 
name  of  another,  but  without  the  latter's  consent,  or  in  the  name  of 
an  unknown  person,  commences  or  continues,  or  causes  to  be  com- 
menced or  continued,  an  action  or  special  proceeding,  in  a  court,  of 
record  or  not  of  record,  or  a  special  proceeding  before  a  judge  or  a 
justice  of  the  peace;  or  takes,  or  causes  to  be  taken,  any  proceeding, 
in  the  course  of  an  action,  or  special  proceeding,  in  such  a  court,  or 
before  such  an  officer,  either  before  or  after  judgment  or  other  final 
determination;  an  action,  to  recover  damages  therefor,  may  be  main 
tained  against  him,  by  the  adverse  party  to  the  action  or  special  pro 
ceeding;  and  a  like  action  may  be  maintained  by  the  person,  if  any, 
whose  name  was  thus  used.  He  is  also  guilty  of  a  misdemeanor,  pun 
ishable  by  imprisonment,  not  exceeding  six  months.  Code  Civ.  Proc. 
§   1900. 

In  an  action,  brought  by  the  adverse  party,  as  prescribed  in  the  last 
section,  the  plaintiff,  if  he  recovers  final  judgment,  is  entitled  to  re- 
cover treble  damages.  In  an  action,  brought  Ly  the  person  whose  name 
was  used,  as  prescribed  in  the  last  section,  the  plaintiff  is  entitled  to 
recover  his  actual  damages,  and  $250  in  addition  thereto.  Code  Civ. 
Proc,   §   1901. 

Poor  person. —  As  to  who  may  prosecute,  and  the  manner  and  mode 
of  so  doing,  see  §§  45  to  53,  inclusive. 

Revivor. —  By  section  20  the  provisions  of  the  Code  of  Civil  Proce- 
dure shall  apply  to  this  court  as  far  as  the  same  can  be  made  applicable 
and  are  not  in  conflict  with  the  provisions  of  this  act.  The  power  of  a 
court  of  record  to  revive  an  action,  in  case  of  the  death  of  a  sole  plain- 
tiff, or  a  sole  defendant,  if  the  cause  of  action  survives  or  continues,  i3 


124  Si  mmons;  Requisites.  §27. 

conferred  by  section  7.">7  of  the  Code  of  Civil  Procedure.  This  sec- 
tion howevei  is  only  applicable  to  the  Supreme  Court,  the  City  Court 
of  the  city  of  New  York,  and  the  County  C^urt  (Code  Civ.  Proa, 
§  3347,  Bubds.  4  to  6),  and  heretofore  has  not  been  made  applicable 
to  this  court.  We  think  that  section  20  gives  the  same  power  to  this 
court,  inasmuch  as  section  757  can  be  made  applicable  to  this  court. 
and  is  not  in  conflict  with  any  of  the  provisions  of  this  act. 

Statute  of  limitations. —  As  to  the  time  when  actions  must  be 
brought,  see  §§  370  to  415,  inclusive,  Code  Civ.   Proc. 

§27.  Summons;  requisites. —  The  summons  must  be  ad- 
dressed to  the  defendant  by  name,  or  if  his  name  be  un- 
known, by  a  fictitious  name,  and  must  summon  him  to  appear 
before  the  court,  at  the  court-room  thereof,  and  at  the  time 
specified  therein,  to  answer  the  complaint  of  the  plaintiff, 
and  must  state  the  amount  for  which  the  plaintiff  will  take 
judgment  if  the  defendant  fail  to  appear  and  answer;  it 
must  be  issued  and  subscribed  by  the  clerk  of  the  court  in 
the  district  out  of  which  the  same  is  issued,  or  by  his  assistant 
in  the  name  of  such  clerk,  except  as  provided  in  section 
twenty-five  of  this  act. 

Notes   to   section   27. 

This  section  is  taken  from  section  1297  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  part  of  which  has  been  embodied  in  section  29. 

It  will  be  observed  that  the  summons  to  "  appear  before  the  justice 
in  the  court,"  as  was  contained  in  section  1297  of  the  Consolidation 
Act  (Laws  1882.  chap.  410)  has  been  omitted,  and  that  now  the  defend- 
ant is  summoned  to  appear  "before  the  court"  and  not  before  the 
"  justice." 

Amendment. —  The  summons  may,  on  the  trial,  be  amended  so  as  to 
change  the  nature  of  the  right  in  which  the  plaintiff  sues.  e.  g.,  it  may 
be  amended  so  as  to  make  it  a  suit  by  him  in  his  own  right  instead  of 
"as"  assignee.  Martin  et  al.  v.  Johnson  et  ah,  8  Daly,  541.  See  also 
Boyd  v.  Vanderkamp,  1  Barb.  Ch.  274;  City  of  New  York  v.  Union  A'//. 
Co.,  31  Misc.  Rep.  451,  04  N.  Y.  Supp.  483. 

Where  a  summons  of  the  Municipal  Court  of  the  city  of  New  York 
is  not  in  the  proper  name  of  the  defendant,  and  contains  no  statement 
that  the  name  by  which  he  is  desisjnated  is  fictitious,  and  he  does  not 
appear  on  the  return  day  either  in  person  or  by  an  agent  or  by  an 
attorney,  the  court  has  no  power  then  to  amend  the  summons  to  the 
proper  name  of  the  defendant  and  render  judgment  against  him  by 
that  name,     titromlcrg  v.  Carnese,  do  iiisc.  Rep.  289. 


§27.  Summons;  Requisites.  L25 

Error,  if  any,  in  the  amendment  of  a  summons  by  adding  new  par- 
ties-defendant is  available  only  to  the  original  defendant.  Button  v. 
Murphy,  9  Misc.  Rep.  151.  See  also  Ktromberg  v.  Carnese,  35  Misc. 
Rep.  289.  71   N.  V.  Supp.  740. 

Justice  has  no  power  to  allow  an  amendment  of  summons  on  trial  by 
adding  the  amount  named  in  the  summons  to  another  action  between 
the  same  parties.     Balch  v.   Wurzburger,  9  Misc.  Rep.  74. 

Amendment  of  the  summons  upon  plaintiff's  withdrawing  the  action 
at  the  trial,  on  discovering  that  the  party  to  be  held  liable  had  not 
been  served,  and  that  the  defendant  designated  was  not  the  party 
for  whom  the  services  sued  for  were  rendered,  so  as  to  bring  in  new 
defendant  for  the  one  then  in  court. —  Held  unauthorized.  Elias  v. 
Hayes,  24  Misc.  Rep.  754,  53  N.  Y.  Supp.  858. 

Appearance;  objections  to  service  of  summons. —  General  appearance 
is  a  waiver  of  objections  to  service  of  summons.  Abramson  v.  Koch, 
27   N.   Y.    Supp.   310. 

Fictitious  name. —  Ignorance  of  the  name  should  be  made  to  appear 
in  the  summons  to  justify  the  use  of  a  fictitious  name.  Fisher  v.  Heth- 
erington,  11  Misc.  Rep.  575. 

Id.;  change  of. —  Plaintiff  in  the  summons  designated  defendant  as 
Joseph  Litto,  stating  therein  that  the  first  name  was  fictitious,  the 
real  name  being  unknown  to  plaintiff,  and  obtained  judgment  by  de- 
fault in  the  action,  issued  execution,  and  arrested  Frank  Liatto.  Held, 
that  the  arrest  was  unauthorized  under  such  judgment,  and  that 
plaintiff  was  bound  by  his  position  that  the  Christian  name  only  was 
unknown  to  him.  People  ex  rel.  Liatto  v.  Dunn,  27  Misc.  Rep.  71, 
58  N.  Y.  Supp.  147. 

Id.;  want  of. —  Where  a  summons  is  not  in  the  proper  name  of  the 
defendant  and  contains  no  statement  that  the  name  by  which  he  is 
designated  is  fictitious,  and  he  does  not  appear  on  the  return  day 
either  in  person  or  by  an  agent' or  by  an  attorney,  the  court  has  no 
power  then  to  amend  the  summons  to  the  proper  name  of  the  defendant 
and  render  judgment  against  him  by  that  name.  Stromberg  v.  Car- 
nese, 35  Misc.  Rep.  289,  71  N.  Y.  Supp.  746. 

Id. ;  inserting  of  real  name. —  Whenever  the  name  of  a  defendant  sued 
by  a  fictitious  name  becomes  known,  it  should  be  substituted,  and  the 
proceeding  be  amended  in  that  respect.  Thus,  where  the  defendant  ap- 
peared, disclosed  his  name,  and  defended  the  action,  a  judgment  against 
"  John  Doe,"  as  named  in  the  process,  was  set  aside  and  declared  erro- 
neous. The  defendant  so  appearing  and  defending  the  suit  has  a  right 
to  appeal  in  his  true  name,  although  the  judgment  be  not  nominally 
against  him.  McCabe  v.  Sands,  2  E.  D.  Smith,  64;  Heidenheimer  v. 
Lyon  and  Bush  sued  as  John  Doe,  3  E.  D.  Smith,  54;  Hoffman  v.  Fish, 
18  Abb.  76. 

Id.;    judgment;    amendment. Tudgment   against   a   defendant   by   a 

fictitious  name  shall  not  bind  or  be  a  charge  upon  the   real  property 


L26  Form   of  Summons.  §  28. 

or  chattels  real  of  any  person,  and  may  ho  amended  at  any  time  within 
ten  years  after  the  docketing  thereof  by  inserting  the  true  name  of 
such  judgment  debtor  upon  such  notice  to  him  as  the  court  may  direct, 
and  such  judgment  shall  thereafter  be  a  lien  upon  the  real  property 
and  chattels  real  which  the  judgment  debtor  then  had,  or  may  there- 
after acquire,  hut  not  for  a  longer  period  than  ten  years  after  the 
original  docketing  of  such  judgment.  §  1251,  Code  Civ.  Proc,  as 
amended    by    Laws    1902,   ehap.   318. 

Mistake  in  name. —  This  court  has  power  to  correct  a  mistake  in  the 
name  of  the  defendant;  which  is  waived,  if  not  pleaded.  City  of  New 
York  v.   Union   /,'//.  Co..  Ml    Misc.  Rep.  451,  64  N.  Y.  Supp.  483. 

A  person  who  (hums  that  a  summons,  in  which  his  brother  is  named 
as  the  defendant,  was  served  upon  him  by  mistake,  has  two  available 
remedies;  one  to  move  to  set  aside  the  service,  and  the  other  to  serve 
a  notice  of  appearance  indicating  that  the  summons  was  served  on 
the  wrong  individual,  and  if  no  attention  is  paid  to  this  to  formally 
answer  and  bring  the  case  to  trial  and  procure  the  complaint  to  be 
dismissed  with  costs.  If  he  resorts  to  the  first-mentioned  remedy,  and 
the  plaintiff  opposes  the  motion,  claiming  that  the  person  served  was 
the  defendant  desired,  it  is  the  duty  of  the  court  to  deny  the  motion. 
Lederer  Amusement  Co.  v.  Pollard,  71  Misc.  Rep.  35. 

Single  letter. —  The  law  does  not  recognize  a  single  letter  as  a  name. 
Frank  v.  Levil,  5  Robt.  599;  Curtis  v.  Brooks,  37  Barb.  479. 

Unknown  name. —  Designating  a  defendant  by  a  fictitious  name  can 
only  be  done  where  the  plaintiff  is  ignorant  of  the  true  name.  Crandal 
v.  Beach,  7  How.  Pr.  271.  See  also  Eliot  v.  Hart,  7  How.  Pr.  25.  In  a 
case  where  the  name  of  the  defendant  was  unknown,  and  he  was  de- 
scribed as  "  John  Doe,  the  real  defendant  in  this  suit,  whose  name  is 
not  now  known  to  this  deponent,  was  in  command  of  the  sloop  Hornet, 
of  Troy,"  it  was  held  to  be  a  sufficient  description.  Pindar  v.  Black, 
4  How.  Pr.  95;  s.  c,  2  Code  Rep.  53. 

Striking  out  name. —  If  too  many  persons  are  joined  as  defendants 
the  names  of  those  improperly  joined  may,  under  section  173  (now 
§  723)  of  the  Code  of  Civil  Procedure,  be  stricken  out  and  judg- 
ment entered  against  the  others. 

The  cases  of  Gates  v.  Ward,  17  Barb.  424;  Webster  v.  Hopkins,  11 
How.  Pr.  140;  Ackley  v.  Tarbox,  29  Barb.  512,  and'  Cilmore  v.  Jacobs, 
48  Barb.  336,  holding  that  section  173  (now  §  723)  of  the  Code  of 
Civil  Procedure  does  not  apply  to  justices'  courts,  overruled.  Lowe  v. 
Rommel,  5  Daly,  17. 

§  28.  Form  of  summons. —  The  summons  must  be  substan- 
tially in  the  following  form,  the  blanks  being  properly  filled 
out. 


§  29.         Summons  ;  Corporation  Counsel,  Etc.  127 

MUNICIPAL  COURT  OF  THE  CITY  OF  NEW  YORK. 

Borough  of                         ,  district 

_ ^ 


plaintiff, 
against  }■  Summons. 


defendant. 


J 


To  the  above  named  defendant : 

You  are   hereby   summoned  and  required  to   appear  in 
this  action  in  the  municipal  court  of  the  city  of  New  York, 

borough  of , district,  in  the  court  room 

thereof,  at ,  in  the  city  of  New  York,  on  the 

day  of ,  19 .  . ,  at o'clock  in  the 

forenoon,  to  answer  the  complaint  of  the  plaintiff  in  this 
action,  who,  if  you  then  fail  to  appear  and  answer  will  take 

judgment  against  you  for  the  sum  of dollars, 

with  interest  from  the day  of ,  19 .  . , 

together  with  the  costs  of  this  action. 

Dated,  New  York, ,  19 .  .  . 


Clerk. 
Notes   to   section   28. 

This  section  is  new. 

There  is  only  one  form  of  summons  in  this  court,  the  provision  for 
the  short  summons  contained  in  section  1298  of  the  Consolidation  Act 
(Laws  1882,  chap.  410)  having  been  repealed,  thus  doing  away  with 
the  provision  relating  to  nonresidents,  a  subject  which  has  caused 
many  conflicting   decisions  in  the  courts. 

For  return  day  in  the  summons,  see  §  37. 

§  29.  Summons;  corporation  counsel  may  issue,  et  cetera. — 
In  any  and  all  actions  brought  in  the  name  of  the  city  of 
New  York,  or  of  any  department,  board,  or  officer  thereof, 


128  Service;   Alias.  §  30. 

by  the  corporation  counsel  of  the  city  of  Xew  York,  as 
attorney  for  said  city,  or  said  department,  board  or  officer 
thereof,  to  recover  a  penalty  or  penalties  for  the  violation  of 
any  laws  or  ordinance,  the  summons  may  be  issued  out  of  said 
court  by  the  corporation  counsel  in  his  own  name  without 
the  same  being  subscribed  by  the  clerk  of  the  court  where 
such  action  or  actions  are  brought,  and  in  such  actions  the 
corporation  counsel  shall  not  be  required  to  pay  to  the  clerk 
of  the  court  the  fees  in  the  action,  but  shall  account  there- 
for to  the  city  treasury  and  shall  collect  the  same  from  the 
defendant,  when  judgment  is  recovered;  and  no  fees  or  costs 
shall  be  demanded  of  the  said  the  city  of  New  York  or  any 
board  or  officer  thereof  in  any  such  suit  or  proceeding. 


Notes   to   section   29. 

This  section  is  a  part  of  section  1297  of  the  Consolidation  Act  (Laws 
1882,  chap.  410),  which  was  headed  "The  Summons,"  and  contained  as 
one  section  what  is  now  contained  in  section  27  and  this  section,  the 
present  section  being  substantially  the  latter  half  of  section  1297  of 
the  Consolidation  Act    (Laws   1882,  chap.  410).     See  notes  to   §  27. 

Corporation  counsel;  bureau  for  recovery  of  penalties  established  by 
section  259  of  the  Charter.  By  section  1614  of  the  Charter  the  cor- 
poration counsel  shall  assume  the  charge,  direction  and  control  of  all 
such  actions,  suits  and  proceedings  in  behalf  of  the  city  of  New  York. 

As  to  fees  or  other  compensation  to  persons  who  serve  process  for 
the  corporation  counsel,  see  §  302. 


§30.  Service;  alias. —  An  action  shall  be  deemed  com- 
menced, at  the  time  the  summons  is  actually  delivered  for 
service.  If  the  marshal  or  other  person  having  the  summons 
to  serve,  cannot  find  the  defendant  so  as  to  serve  him  there- 
with as  required  by  this  act,  he  must  so  return,  and  the 
clerk  shall,  at  the  request  of  the  plaintiff,  if  made  between 
the  last  day  when  service  could  be  had  and  the  return  day 
mentioned  in  said  summons  or  alias,  including  such  return 
day,  continue  from  time  to  time  to  issue  another  summons, 
to  be  known  as  and  stamped  "  alias,"  until  the  defendant 
is  served. 


§  31.  Method  of  Service.  129 

Notes   to   section    30. 

This  section  is  taken  from  the  latter  portion  of  section  1303  of  the 
Consolidation  Act  (Laws  1882,  chap.  410),  which  was  formerly  taken 
from  Laws  1857,  chap.  344,  §   22. 

As  to  when  action  shall  be  deemed  commenced,  see  notes  under  §  26, 
and  §  400,  Code  Civ.  Proc. 

It  must  be  observed  that  the  alias  summons  must  be  stamped 
"  alias,"  so  that  a  writing  on  the  face  of  the  summons,  or  an  indorse- 
ment thereon  "  alias,"  would  be  held  not  a  compliance  with  this  sec- 
tion. 

Alias  summons  may  issue,  without  charge,  on  application  to  the 
clerk  at  the  time  of  the  return  mentioned  therein,  when  the  summons 
is  not  served.  Before  an  alias  summons  can  issue,  the  original  sum- 
mons must  have  the  indorsement  of  the  marshal  that  the  defendant 
cannot  be  found.  Doughty  v.  Hess,  opinion  by  Gedney,  J.,  January  9, 
1878,  Daily  Register,  January  26,   1878,  vol.    13,  No.  22. 

If  the  marshal  returns  a  summons  "  Defendant  not  found,"  the 
plaintiff,  on  demand,  is  entitled  to  an  alias  summons,  without  wait- 
ing until  the  return  day  named  in  the  summons.  Ellinghausen  v. 
Leask,  1  Abb.  N.  C.  299. 

Clerk  has  no  power  to  issue  a  second  or  "  alias  "  summons,  unless 
proof  has  been  made  by  the  marshal,  or  other  person  having  the  first 
summons  to  serve,  of  his  inability  to  find  the  defendant.  Loeb  v. 
Smith,  24  Misc.  Rep.  200,  52  N.  Y.  Supp.  677. 

"New  summons;"  in  action  upon  bastardy  bonds  for  any  breaches 
of  the  condition  of  such  bond  which  shall  happen  after  the  recovery 
of  any  damages,  on  the  commencement  of  any  suit,  the  court  in 
which  the  suit  was  originally  brought  shall  have  power  to  issue  a 
new  summons,  and  upon  the  return  thereof  to  ascertain  the  amount 
of  damages  arising  from  such  breach,  and  to  give  judgment  accord- 
ingly.    §  178. 

Other  defendants. —  An  alias  summons  cannot  be  issued  to  bring  in 
other  defendants,  the  action  failing  against  the  only  defendant  made 
a  party.    Elias  v.  Hayes,  24  Misc.  Rep.  754,  53  N.  Y.  Supp.  858. 

§  31.  Method  of  service. —  The  summons  must  be  served  as 
follows : 

1.  If  an  action  be  against  a  corporation,  by  delivery  of  a 
copy  to  the  president  or  other  head  of  the  corporation,  or 
to  the  secretary,  cashier,  or  managing  agent  thereof,  but 
when  no  such  officer  resides  in  the  city,  to  a  director  resident 
therein. 

2.  If  against  a  minor  under  the  age  of  fourteen  years,  by 
delivery  of  a  copy  to  such  minor,  and  also  to  his  father, 

9 


130  Mktiiod  of  Service.  §31. 

mother  or  guardian,  or  if  they  be  not  within  the  city,  then 
to  any  person  having  the  care  or  control  of  said  minor,  or 
with  whom  he  resides,  or  in  whose  service  he  is. 

3.  If  against  a  person  judicially  declared  to  he  of  unsound 
mind,  or  incapable  of  conducting  his  own  affairs  in  conse- 
quence of  habitual  drunkenness,  or  for  any  other  cause,  and 
for  whom  a  committee  has  been  appointed,  by  delivery  of  a 
copy  to  such  committee  and  of  the  defendant  personally. 

4.  In  all  other  cases  to  the  defendant  personally,  except  as 
in  this  act  otherwise  specially  provided. 

Notes   to    section    31. 

This  section  is  the  same  as  section  1300  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  which  was  a  part  of  section  14,  Laws  1857, 
chap.  344,  except  the  substitution  of  the  word  "  or "  for  "  but "  in 
the  third  line  of  subdivision  1. 

Appearance,  general,  for  defendant  by  an  attorney  confers  jurisdiction 
although  he  was  retained  to  appear  only  specially  to  have  service  of 
the  summons  set  aside,  if  he  had  authority  to  appear  at  all.  Kramer 
v.  Gerlach,  28  Misc.  Rep.  525,  59  N.  Y.  Supp.  855. 

Attorney. —  Service  of  summons  and  complaint  on  defendant's  attor- 
ney, not  followed  by  appearance  on  the  return  day,  gives  no  jurisdic- 
tion, and  a  judgment  entered  thereon  as  by  default  is  void.  Goldberg 
v.  Fowler,  29  Misc.  Rep.  328. 

Corporations. —  To  authorize  legal  service  upon  a  managing  agent,  he 
must  be  one  whose  agency  extends  to  all  the  business  of  the  corpora- 
tion, and  not  a  particular  branch  or  department  of  its  business.  Brew- 
ster v.  Michigan  Central  R.  R.  Co.,  5  How.  Pr.  183.  A  baggage-master 
is  not  such  an  agent  as  the  statute  contemplates.  Flynn  v.  Hudson 
River  R.  R.  Co.,  6  How.  Pr.  308.  An  agent  of  an  insurance  company, 
properly  appointed  and  qualified  to  procure  and  effect  insurance,  resid- 
ing at  a  different  place  from  where  the  principal  office  of  the  company 
is  located,  is  such  a  "  managing  agent  "  that  legal  service  against  the 
company  may  be  made  by  serving  him.  Bain  v.  Clobe  Ins.  Co.,  9 
How.  Pr.  448.  Where  it  is  uncertain  whether  the  party  served  is  or 
is  not  a  managing  agent,  the  burden  is  on  the  defendant  to  show  the 
relation  to  them  of  a  party  served,  and  that  he  is  not  a  managing 
agent,  it  being  within  their  power  to  show  the  precise  relations  of 
the  agent  toward  them.  Donadi  v.  A7.  Y.  State  Hut.  Ins.  Co.,  2  E.  D. 
Smith,  519. 

Personal  service  upon  a  managing  agent  of  a  corporation  is  personal 
service  upon  the  corporation,  and  if  the  marshal's  return  shows  such 
a  service  the  jurisdiction  of  the  justice  is  established,  and  his  judg- 


§  31.  Method  of  Service.  131 

ment  will  be  regular  upon  its  face.     N.  Y.  d  Erie  R.  R.  Co.  v.  Purdy, 
18  Barb.  574. 

For  further  and  other  cases  of  service  on  agents  and  officers  of  cor- 
porations, see  Cumming  &  Gilbert's  Official  Court  Rules,  1900,  pp.  74 
to  79. 

Defects  in  the  affidavit  of  service  may  be  amended  on  the  return  day, 
and  are  cured  by  appearance  or  answer  without  objection.  Gushing- 
ham  v.  Phillips,  1  E.  D.  Smith,  416;  Andrews  v.  Throop,  1  E.  D.  Smith, 
615;  Bray  v.  Andreas,  1  E.  D.  Smith,  387;  Hogan  v.  Baker,  2  E.  D. 
Smith,  22;  Boyd  v.  Yandcrkcmp,  1  Barb.  Ch.  274.  See  also  1  Hilt. 
49;  32  How.  230;  3  E.  D.  Smith,  119,  303,  577;    1  Daly,  306. 

Designated  service. —  Section  430,  Code  Civ.  Proc,  entitled  "  Designa- 
tion by  a  resident  of  a  person  upon  whom  to  serve  a  summons  dur- 
ing his  absence,  effect  and  revocation  thereof,"  is  made  applicable  by 
section  74  of  this  act,  post,  with  reference  to  what  may  be  shown  for 
procuring  a  warrant  of  attachment. 

Election  day. —  Service  of  a  summons  on  an  elector  on  an  election  day, 
and  all  proceedings  under  it,  are  void.  Meeks  v.  Xoxon,  1  Abb.  Pr. 
280;  s.  c,  sub  nom.  Meeks  v.  Noxon,  11  How.  Pr.  189;  Hastings  v. 
Farmer,  4  N.  Y.  296;  Bierce  v.  Smith,  2  Abb.  Pr.  411.  See  also  Peo- 
ple ex  rel.  Monday  v.  Schicartz,  3  Abb.  Pr.  N.  S.  395. 

Fraud. —  Any  attempt  by  fraud  or  misrepresentation  to  induce  or 
bring  a  party  within  the  jurisdiction  for  service  of  process  upon  him, 
will  make  the  service  irregular  and  null  and  void.  Carpenter  v.  Simon- 
son,  2  Code  Rep.  140;  s.  c,  2  Sandf.  717;  Goupil  v.  Simonson,  3  Abb. 
Pr.  474. 

Where  there  has  been  any  fraud,  trick,  deceit  or  misrepresentation, 
for  the  purpose  of  bringing  a  person  within  the  jurisdiction,  that 
he  may  be  served  with  summons,  the  service  will  be  set  aside.  Baker 
v.  Wales,  45  How.  137,  14  Abb.  N.  S.  231;  Carpenter  v.  Spooner,  2 
Code  Rep.  140;  affd.,  2  Sandf.  716,  3  Code  Rep.  23;  Metcalf  v.  Clark,  41 
Barb.  45.     And  see  Goupil  v.  Simonson,  3  Abb.  474. 

When  attorney's  clerk  enticed  defendant  within  the  jurisdiction,  the 
summons  was  set  aside.     Wyckoff  v.  Packard,  20  Abb.  N.  C.  420. 

When  a  defendant  is  induced  to  come  within  the  jurisdiction  of  a 
court  by  letter  from  the  plaintiff  requesting  an  interview,  and  is  then 
served  at  the  office  of  plaintiff  with  a  summons, —  Held,  that  the  service 
should  be  set  aside.  Dunham  v.  Cressy,  21  N.  Y.  St.  Rep.  266.  4 
N.   Y.    Supp.    13. 

Any  trick  or  device  which  deprives  a  defendant  of  fair  notice  that 
an  action  has  been  commenced  is  a  fraud.  Putting  defendant  in  the 
unknown  possession  of  a  summons,  disguised  so  as  to-  conceal  from 
him  its  nature,  just  as  he  is  entering  upon  a  sea  voyage,  is  not  good 
service;  nor  does  the  subsequent  discovery  by  defendant  of  the  con- 
tents when  he  is  beyond  the  limits  of  the  State  make  it  good.  Bulkley 
v.  Bulkley,  6  Abb.  307. 


132  Method  of  Service.  §31. 

Service  by  wrongful  entrance  to  house.  Mason  v.  Libbey,  1  Abb. 
N.   C.  354. 

When  judgment  set  aside  as  having  been  procured  through  fraud  in 
the  service.     Mather  v.  /'arsons,  32  Hun,  338. 

Fact  of  service;  jurisdiction. —  While  the  return  of  personal  service 
of  the  summons  on  defendants  establishes  jurisdiction  prima  facie, 
yet  if  the  summons  v  as  not  in  fact  served,  no  jurisdiction  was  ac- 
quired. Iron  Clad  Mfg.  Co.  v.  Benjamin  K.  Smith  d  Sons,  28  Misc. 
Rep.  172.  59  N.  Y.  Supp.  332.  See  also  §  253.  "Court  May  Open 
Default,"  and  §  311,  as  to  appeal  in  such  case  after  notice  of  entry  of 
judgment. 

Holidays. —  See  notes  to  §§  17  and  37.  Service  of  process  is  not  in- 
valid because  made  on  a  holiday.  Laws  1881,  chap.  30,  designating 
the  holidays  to  be  observed  in  the  presentation  and  acceptance  of 
bills  of  exchange,  notes,  and  checks,  and  the  closing  of  public  offices 
was  not  intended  to  diminish  the  number  of  judicial  holidays.  Dids- 
bury  v.  Van  Tassell,  31  N.  Y.  St.  Rep.  204;  s.  c,  56  Hun,  423. 

Christmas  day  and  Lincoln's  birthday. —  There  is  no  law  in  this 
State  interdicting  the  service  of  any  legal  process  or  the  holding  of 
any  court  on  a  holiday,  and  so  service  of  a  summons  on  a  Christmas 
day  is  legal.     Didsbury  v.   Van  Tassell,  56  Hun,  423. 

Service  of  an  order  upon  Lincoln's  birthday  is  valid.  Matter  of 
Borneman,  6  App.  Div.  524." 

Service  of  summons  is  good  on  a  legal  holiday.  Walton  v.  Stafford, 
162  N.  Y.  558;  Paige  v.  Shainwald.:  169  N.  Y.  246;  Flynn  v.  Surety 
Co.,   170  N.  Y.  145,  affg.  s.  c,   61   App.  Div.   170. 

Service  of  process  is  not  invalid  because  made  on  Saturday  half- 
holiday.     Didsbury  v.  Van  Tassell,  56  Hun,  423. 

Where  the  time  within  which  a  party  may  serve  a  pleading  falls 
upon  a  Saturday,  that  day,  being  a  half-holiday,  must  be  excluded  in 
computing  the  time,  and  the  service  upon  the  following  Monday  is 
sufficient.  Reynolds  v.  Palen,  13  Civ.  Proc.  Rep.  200.  But  see  contra, 
Fries  v.  Coar,  13  Civ.  Proc.  Rep.  152.  And  see  Nichols  v.  Kelsey,  13 
Civ.  Proc.  Rep.   154. 

Lunatic. —  An  action  cannot  be  brought  against  a  lunatic  judicially 
declared  such,  without  application  to  the  court.  The  summons  must 
then  be  served  upon  his  committee  and  upon  the  lunatic  personally. 
Code,  §§  426,  431.  432;  Sovereill  v.  Dickson,  5  How.  Pr.   109. 

Marshal  cannot  serve  a  summons  in  his  own  action,  where  he  is  the 
plaintiff.     Smith  v.  Burlis,  23  Misc.  Rep.  544. 

Id.;  return  not  conclusive. —  Defendant  may  object  that  the  summons 
was  not  served  in  such  a  manner  as  to  confer  jurisdiction.  Wheeler  v. 
N.  V.  d-  Harlem  R.  R.  Co.,  24  Barb.  414. 

Mechanic's  liens. —  Service  of  summons  must  be  made  at  least  eighi. 
days  before  the  return  day.     Code  Civ.  Proc,  §  3404,  which  was  added 


§  32.         Order  for  Service  of  Summons,  Etc.  L33 

by  Laws  1897,  chap.  419,  p.  547.  See  §  3405  of  said  Code,  for 
service  of  summons  by  publication. 

Modes  of  serving  summons. —  Sec  notes  on  same  in  21  Abb.  N.  C.  178. 

Objections  to  service  must  be  made  by  appearing  specially  for  that 
purpose  only;  a  general  appearance  waives  the  objection.  The  defect 
may  be  amended.  See  authorities  cited  to  "  Defect  "  in  notes  to  this 
section  above,  and  notes  to  §  37. 

Plaintiff  cannot  serve  summons  in  his  own  case  (§  30;  Code  Civ.  Proc, 
§  425),  but  if  he  does,  it  is  a  mere  irregularity,  and  the  summons  is 
not  void.  Hunter  v.  Lester,  18  How.  Pr.  347;  s.  c,  10  Abb.  260;  Loscy 
v.  Stanley,  83  Hun,  420. 

Return  of  personal  service. —  To  authorize  a  justice  to  render  judg- 
ment against  an  absent  defendant  there  must  be  a  return  showing  per- 
sonal service  of  summons.     Manning  v.  Johnson,  8  Barb.  457. 

Substituted  service  when  a  defendant  cannot  be  found  is  now  pro- 
vided for  by  sections  32,  33,  34. 

Summons  not  personally  served,  and  defendant  not  appearing,  he  is 
allowed  to  appeal  within  twenty  days  after  personal  service  upon 
him  of  written  notice  of  entry  of  judgment.  See  §  311.  And  by  sec- 
tion 253  the  "  court  may  open  default." 

Sunday. —  Process  cannot  be  served  on  Sunday.  Code  Civ.  Proc,  §  09 ; 
Vdn  Vechten  v.  Paddock,  12  Johns.  178;  Scott  Shoe  Co.  v.  Dancel,  63 
App.  Div.  172. 

Service  of  notice  of  a  motion  on  Sunday  is  irregular  and  void.  Field 
v.  Park,  20  Johns.  140.  Proceedings  founded  upon  the  service  of  a 
writ  on  Sunday  vacated.     Rob  v.  Moffat,  3  Johns.  257. 

Witness,  nonresident. —  A  resident  of  another  State  coming  to  the 
city  to  be  examined  as  a  witness,  and  attending  in  good  faith  for  that 
purpose  only,  is  exempt  irom  the  service  of  a  summons  upon  him. 
Seaver  v.  Robinson,  3  Duer,  622;  Person  v.  Grier,  66  N.  ^.  124;  Brett 
v.  Broicn,  13  Abb.  Pr.  N.  S.  295. 

§  32.  Order  for  service  of  summons;  when  defendant  not 
found. —  An  order  for  the  service  of  a  summons  upon  a  de- 
fendant residing  within  the  city,  may  be  made  by  the  court 
in  the  district  in  which  an  action  is  brought  after  an  alias 
summons  has  been  duly  issued,  upon  satisfactory  proof  by 
the  affidavit  of  a  person  not  a  party  to  the  action,  and  the 
return  of  a  marshal,  that  proper  and  diligent  effort  has  been 
made  to  serve  the  summons  upon  the  defendant,  and  that 
the  place  of  his  sojourn  cannot  be  found,  or  if  he  is  within 
the  city  that  he  avoids  service  so  that  personal  service  could 
not  be  made. 


i:)l  Order  rou  Service  of  Summons,  Etc.        §32. 

Notes   to    section    32. 

This  section  and  sections  33,  34  and  35  are  taken  from  Article  II, 
"Substitutes  for  Personal  Service  in  Special  Cases,"  §§  435  to  445, 
Code  Civ.  Proc.  By  Laws  1853,  chap.  511,  and  Laws  1863,  chap.  212, 
the  District  Courts  possessed  the  power  of  ••substituted  service;'' 
these  laws  were  repealed  by  the  "Repealing  Ad  "  (Laws  l880,  chap. 
245),  since  which  time  this  court  has  been  without  the  power  now 
restored. 

Affidavit  to  obtain  order. —  Where  it  is  shown  by  affidavit  that  the 
defendant  cannot,  after  diligent  effort,  be  served  at  his  place  of  busi- 
ness or  residence,  and  that  no  information  can  be  obtained  as  to  his 
whereabouts,  an  order  for  substituted  service  may  properly  be  granted. 
Malloy  v.  Lennon,  22  Misc.  Rep.  542,  49  N.  Y.  Supp.  (83  St.  Rep.) 
1004,  27  Civ.  Proc.  Rep.  166.  See  also  Xagle  v.  Taggart,  4  Abb.  N.  C. 
144;  Easton  v.  Malaioazi,  7  Daly,  147;  Simpson  v.  Burch,  4  Hun,  315. 
Amendment;  error  in  name. —  An  error  in  the  given  name  of  the 
plaintiff  in  the  copy  of  a  summons  annexed  to  an  order  for  substi- 
tuted service  may  be  corrected  on  motion;  it  does  not  require  that 
the  summons  and  the  order  for  the  substituted  service  thereof  and 
such  service  be  set  aside.  Farrington  v.  Muchmore,  52  App.  Div.  247, 
65  N.  Y.  Supp.  (99  St.  Rep.)  432,  revg.  30  Misc.  Rep.  218,  62  N.  Y. 
Supp.    (96  St.  Rep.)    165. 

Infants. —  Substituted  service  upon  "  any  defendant  "  includes  in- 
fants. Steinhardt  v.  Baker,  25  App.  Div.  197;  affd.,  163  N.  Y.  410, 
4!)  X.   Y.  Supp.    (83  St.  Rep.)    357. 

Substituted  service  may  be  made  upon  infants  who  are  concealed 
from  service  by  their  mother.  Steinhardt  v.  Baker,  25  App.  Div.  197; 
affd.,  163  N.  Y.  410,  49  N.  Y-  Supp.    (83  St.  Rep.)    357. 

Irregularity;  misnomer. —  Misnomer  of  the  plaintiff,  in  a  summons,  is 
a  substantial  irregularity,  for  which  a  substituted  service  will  be  set 
aside.  Farrington  v.  Muchmore,  30  Misc.  Rep.  218,  62  N.  Y.  Supp. 
(96  St.  Rep.)    165. 

Mechanic's  lien  actions;  when  personal  service  cannot  be  made. —  If 
personal  service  of  the  summons  cannot  be  made  upon  a  defendant  in 
an  action  in  a  court  not  of  record,  by  reason  of  his  absence  from  the 
State,  or  bis  concealment  therein,  such  service  may  be  made  by  leaving 
a  copy  thereof  at  his  last  place  oC  residence,  and  by  publishing  a  copy 
of  the  summons  once  in  each  of  three  successive  weeks  in  a  newspaper 
in  the  city  or  county  where  the  property  is  situated.  Code  Civ.  Proc, 
§  3405. 

Order  for  service  on  infants. —  An  order  for  substituted  service  upon 
infants  is  sufficient,  although  it  does  not,  in  express  terms,  require 
service  upon  the  parent,  where  it  follows  the  statute  literally,  and  it 
appears  that  service  was  made  on  the  mother  as  the  parent  and  per- 
son with  whom  the  infants  resided.  Steinhardt  v.  Baker,  163  N.  Y. 
410,  57  N.  E.  629. 


§§  33,  34.     How  Service  Must  be  Made,  Etc.  135 

§  33.  How  such  service  must  be  made. —  The  order  must 
direct  that  the  service  of  the  summons  be  made,  by  leaving  a 
copy  thereof,  and  of  the  order,  at  the  residence  of  the  defend- 
ant, with  a  person  of  proper  age,  if  upon  reasonable  applica- 
tion, admittance  can  be  obtained,  and  such  person  found  who 
will  receive  it ;  or,  if  admittance  cannot  be  obtained,  nor  such 
a  person  found,  by  affixing  the  same  to  the  outer  or  other 
door  of  the  defendant's  residence,  and  by  depositing  another 
copy  thereof,  properly  enclosed  in  a  post-paid  wrapper,  ad- 
dressed to  him,  at  his  place  of  residence,  in  a  post-office  in 
the  borough  in  which  he  resides;  or  upon  proof  being  made 
by  affidavit  that  no  such  residence  can  be  found,  service  of 
the  summons  may  be  made  in  such  manner  as  the  court  may 
direct. 

Notes   to   section    33. 

This  section  is  taken  from  section  436  of  the  Code  of  Civil  Proce- 
dure.    See  notes  to  §  32. 

Holiday. —  Service  of  summons  may  be  made  on  a,  Didsbury  v.  Van 
Tassel,  56  Hun,  423;  People  v.  Van  Tassel,  50  Hun,   105. 

Summons  not  personally  served,  defendant  not  appearing,  the  remedy 
is  by  appeal  from  the  judgment.     See  §  311  and  notes. 

§  34.  Papers  to  be  filed ;  proof  of  service —  The  order,  and 
the  papers  upon  which  it  was  granted,  must  be  filed,  and  the 
service  must  be  made,  not  less  than  six  days  before  the  return 
day  of  the  summons;  otherwise  the  order  becomes  inopera- 
tive. On  filing  an  affidavit  showing  service  according  to  the 
order,  the  summons  is  deemed  served  and  the  same  proceed- 
ings may  be  taken  thereupon,  as  if  personal  service  thereof 
had  been  made  except  that  no  execution  against  the  person 
shall  issue  upon  a  judgment  obtained  after  such  service. 

Notes   to   section    34. 

This  section  is  taken  from  section  437  of  the  Code  of  Civil  Procedure. 
See  also  notes  to  §  32. 

Proof  of  service. —  Substituted  service  by  leaving  the  copy  of  sum- 
mons at  what  was  assumed  to  be  the  defendant's  residence,  but  which 
in  fact  was  not,  the  defendant  having  left  the  State,  is  insufficient 
to  confer  jurisdiction.  Matter  of  Norton,  32  Misc.  Rep.  224,  66  N.  Y. 
Supp.    (100  St.  Rep.)    317. 


136      Defendant  When  Allowed  to  Defend.     §§  35,  36. 

The  affidavit  must  be  filed  showing  service  according  to  the  order. 
The  same  kinds  of  proof  are  necessary  in  cases  of  substituted  service 
as  when  the  service  is  by  publication.  Smith  v.  Fogarty,  6  Civ.  Proc. 
Rep.  366. 

§  35.  Defendant  when  allowed  to  defend. — Where  the  sum- 
mons is  served,  pursuant  to  an  order  made  as  herein  pre- 
scribed, and  the  defendant  so  served  does  not  appear,  he  or 
his  representative  must  upon  good  cause  shown  and  upon 
just  terms  be  allowed  to  defend  the  action  at  any  time  within 
six  months  after  personal  service  of  written  notice  thereof; 
or  if  such  notice  has  not  been  served,  within  two  years  after 
the  entry  of  the  judgment.  If  the  defense  is  successful,  and 
the  judgment,  or  any  part  thereof  has  been  collected  or 
otherwise  enforced,  such  restitution  may  thereupon  be  com- 
pelled as  the  court  directs,  but  the  title  to  property  sold,  to 
a  purchaser  in  good  faith  by  virtue  of  an  execution  issued 
upon  the  judgment,  shall  not  be  affected  thereby. 

Notes,  to   section   35. 

This  section  is  taken  from  section  445  of  the  Code  of  Civil  Proce- 
dure, the  time  limits  being  lessened.     See  also  notes  to  §  32. 

Terms  to  be  imposed. —  See  Marvin  v.  Brandy,  30  N.  Y.  St.  Rep.  694, 
9  N.  Y.  Supp.  593. 

§  36.  Who  may  serve  summons,  et  cetera. —  The  summons, 
and  in  a  proper  case  a  copy  of  the  complaint,  or  a  precept  in 
summary  proceedings,  may  be  served  by  a  marshal  or  by  any 
person  not  a  party  to  the  action,  who  is  over  the  age  of  eigh- 
teen years.  Proof  of  service  by  such  person  other  than  a 
marshal  must  be  made  by  his  affidavit  which  must  state  the 
particular  place,  time  and  manner  of  service,  and  that  the 
affiant  knew  the  person  so  served  to  be  the  person  mentioned 
and  described  in  the  summons  as  defendant  therein. 

Notes   to   section   36. 

This  section  is  substantially  the  same  as  section  1301  of  the  Con- 
solidation Act  (Laws  1882.  chap.  410),  and  of  section  3208  of  the 
Code  of  Civil  Procedure,  relating  to  inferior  city  courts,  the  latter  of 
which  was  a  substitute  for  section  15  of  the  Laws  of  1857,  chap.  344. 


§  36.  Who  May  Serve  Summons,  Etc.  137 

See  also  §  425,  Code  Civ.  Proc,  as  to  who  may  serve  the  summons, 
and  §   302  of  this  act,  "  Process  to  be  Served  by  Marshals." 

As  to  the  method  of  service,  see  §  31   and  notes. 

As  to  substituted  service,  and  proof  of  service,  see  §  34. 

This  section  should  also  be  entitled  "  Proof  of  Service,"  as  the  latter 
half  of  it  relates  to  that  subject. 

Admission  of  service. —  Plaintiff  is  not  made  incompetent  to  prove 
admission  of  service.  White  v.  Bogert,  73  N.  Y.  256 ;  Maples  v. 
Mackey,   15   Hun,   533. 

Affidavit  of  service;  Supreme  Court  rule. —  Where  personal  service 
of  the  summons,  and  of  the  complaint,  or  notice,  if  any  accompany  the 
same,  shall  be  made  by  any  other  person  than  the  sheriff  (marshal),  it 
shall  be  necessary  for  such  person  to  state  in  his  affidavit  of  service 
his  age,  or  that  he  is  more  than  twenty-one  years  of  age;  when,  and 
at  what  particular  place,  and  in  what  manner  he  served  the  same,  and 
that  he  knew  the  person  served  to  be  the  person  mentioned  and  de- 
scribed in  the  summons  as  defendant  therein;  and  also  to  state  in 
his  affidavit  that  he  left  with  defendant  such  copy,  as  well  as  deliv- 
ered it  to  him.  No  such  service  shall  be  made  by  any  person  who 
is  less  than  eighteen  years  of  age.  Rule  18  of  the  Supreme  Court, 
made  applicable  by  section  20. 

Amendment  of  affidavit  of  service  may  be  made  even  after  judgment. 
Jones  v.  U.  S.  Slate  Co.,  16  How.  Pr.  120. 

Attorney  may  serve  the  summons,  and  the  court  will  take  judicial 
notice  that  he  is  at  least  twenty-one  years  of  age,  when  his  age  is 
omitted  from  the  affidavit.  Booth  v.  Kingsland,  etc.,  18  App.  Div.  407. 
See  also  Spaulding  v.  Lyon,  2  Abb.  N.  C.  203. 

Copy  served;  proof  of  service  of  a  summons  in  an  action  to  recover 
a  penalty,  the  original  being  properly  indorsed,  is,  it  seems,  not  proof 
that  the  summons  served  was  so  indorsed.  People  v.  Walters,  7  Civ. 
Proc.  Rep.  406;   s.  c,   15  Abb. '  N.  C.  461. 

Disputing  the  fact  of  service  before  judgment. —  The  defendant  may 
dispute  the  service  before  appearing  in  the  action.  Litchfield  v.  Bur- 
well,  5  How.  Pr.  341,  1  Code  R.  N.  S.  42 ;  Van  Rensselaer  v.  Chadwick, 
7  Hows  297 ;  Wheeler   v.  N.  Y.  &  B.  R.  R.  Co.,  24  Barb.  44. 

If  it  appears  that  he  purposely  kept  out  of  the  way  to  avoid  per- 
sonal service,  he  must  satisfy  the  court  that  the  summons  did  not  in 
fact  reach  him  or  come  to  his  knowledge.  Southwell  v.  Marryatt,  1 
Abb.  Pr.  218;   Hilton  v.  Thurtson,  1  Abb.  Pr.  318. 

Where,  from  the  affidavit  of  the  defendant,  his  son  and  his  attorney, 
it  appears  that  the  summons  was  never  served  upon  the  defendant, 
but  left  at  his  place  of  business  during  his  absence,  and  against  this 
is  the  customary  unsworn  indorsement  of  the  marshal  that  the  sum- 
mons had  been  personally  served  upon  the  defendant,  the  presumption 
of  regularity  is  rebutted  by  the  defendant,  and  in  absence  of  an  affi- 


138  Wm>   May  Seeve  Summons,  Etc.  §  30. 

davit  by  the  marshal  a  retrial  of  the  cause  should  be  granted.     Burk- 
hard  v.  Smith,   19  Misc.   Rep.  31. 

To  make  competent  proof  of  the  service  of  a  summons,  the  affidavit 
of  the  person  who  mad.  the  service  is  not  necessary;  the  affidavit  of 
a  third  person,  who  swears  unequivocally  and  positively  to  the  ser- 
vice, is  sufficient.  The  presumption  from  such  an  affidavit  is  that  the 
affiant  swears  from  pe;  ional  knowledge,  not  from  hearsay.  Murphy  v. 
Shea,  143  N.  Y.  78. 

Where  a  person  testified  that  he  served  a  summons,  his  testimony 
is  of  greater  weight  than  is  the  testimony  of  disinterested  persons  who 
state  that  they  stood  by  and  saw  no  service  made.  Szerlip  v.  Baier, 
21  Misc.  Rep.  331. 

Disputing  the  fact  of  service  after  judgment  entered. —  Under  the 
law,  as  it  existed,  by  the  Charter  of  1897,  as  amended  in  1901,  great 
difficulty  was  experienced  to  solve  the  question  as  to  how  to  get  rid  of 
a  judgment  entered  against  a  defendant  who  claimed  that  he  had 
never  been  served  with  the  summons.  The  judgment  was  not  entered 
by  default,  which  a  justice  could  open,  as  by  the  decision  in  Carpen- 
ter v.  Willett.  18  N.  Y.  90,  he  was  functus  officio.  After  he  had  rendered 
judgment  there  was  no  remedy  except  by  appeal  from  the  judgment 
in  pursuance  of  section  3057  of  the  Code  of  Civil  Procedure,  entitled 
"  Proceedings  when  error  of  fact  is  alleged,"  which  was  made  ap- 
plicable to  this  court  by  section  1367  of  said  Charter,  entitled  "  Ap- 
peals." In  the  case  of  Edel  v.  McCone,  16  Daly,  216,  upon  a  motion 
by  defendant  to  set  aside  a  judgment  on  the  ground  that  he  had  not 
been  served  with  the  summons,  the  plaintiff  objected  that  the  court 
had  no  jurisdiction  under  section  1367  of  the  Consolidation  Act,  en- 
titled "  Opening  defaults  and  setting  aside  judgments."  but  the  plain- 
tiff was  held  to  be  estopped  from  making  such  objection  because  he 
had  given  proof  of  personal  service  on  which  judgment  was  entered. 
In  Tracy  v.  Shannon,  22  Abb.  N.  C.  136,  the  court  struggled  with 
the  question  and  said  the  remedy  was  by  appeal  upon  the  alleged  error 
of  fact  (§  3057),  or  if  the  time  to  appeal  had  elapsed  before  the  de- 
fendant was  aware  of  the  judgment,  his  remedy  was  in  equity. 

In  Iron  Clad  Mfg.  Co.  v.  Benjamin  E>.  Smith  &  Sons,  28  Misc.  Rep. 
172,  54  N.  Y.  Supp.  332,  it  was  held,  under  section  3057  of  the  Code 
and  section  1367  of  the  Charter,  that  the  return  of  personal  service 
of  the  summons  on  defendant  establishes  jurisdiction  prima  facie,  yet 
if  the  summons  was  not  in  fact  served,  no  jurisdiction  is  acquired. 

This  troublesome  question,  and  procedure  as  indicated,  has  now 
been  set  at  rest  by  the  repeal  of  section  1367  of  the  Charter,  and  a 
revision  of  the  sections  of  the  Code  of  Civil  Procedure,  which  had 
been  made  applicable  to  this  court  by  it,  omitting,  among  others,  sec- 
tion 3057  of  the  Code  of  Civil  Procedure,  leaving  it  now  only  ap- 
plicable, as  it  originally  was,  to  justices'  courts  in  the  country,  and 


§  37.  Keturn  Day.  139 

by  section  1,  subdivision  19,  of  this  act,  giving  this  court  jurisdic- 
tion, generally,  to  set  aside  any  judgment  upon  any  ground.  See 
also  "  Summons  Not  Personally  Served."  And  defendant  not  appear- 
ing, the  remedy  is  by  appeal  from  the  judgment  and  not  by  motion  to 
open  default,  for  there  is  no  default.     See   §  311  and  notes. 

Insufficient  returns. —  The  following  have  been  held  to  be  insufficient: 
"Omitting  title  of  cause."  Litchfield  v.  Burweli,  5  How.  341.  "  Served 
copy  left  the  9th  day  of  February,  1869."  Sperry  v.  Reynolds,  65 
N.  Y.  179. 

Marshal  cannot  serve  summons  in  an  action  in  which  he  is  the  plain- 
tiff.    Smith  v.  Burlis,  23  Misc.  Rep.  544. 

No  fee  allowed  to  person  serving  summons  other  than  a  marshal. — 
See  §  302. 

Objection. —  The  defendant  must  appear  and  make  his  objection  to 
the  return  or  service.    Hawley  v.  Wilson,  1  Hilt.  259. 

Plaintiff  serving  the  summons  is  a  mere  irregularity,  and  the  process 
is  not  void.  Hunter  v.  Lester,  18  How.  Pr.  347;  s.  c,  10  Abb.  260; 
Losey  v.  Stanley,  83  Hun,  420. 

Policeman  may  serve  all  process  and  papers  and  have  the  powers  of 
a  marshal  in  action  by  the  health  department.     Charter  §    1262. 

Sufficient  return. — "  Personally  served,  and  by  copy  on  E.  L.  W.,  a 
managing  editor  of  defendants,"  it  was  held  sufficient  to  give  jurisdic- 
tion of  the  corporation,  that  the  justice  was  not  bound  to  require 
further  evidence  of  the  official  position  or  character  of  the  agent  on 
whom  the  process  was  served.  N.  Y.  &  Erie  R.  R.  Co.  v.  Purdy,  18 
Barb.  574. 

Summary  proceedings. —  The  service  of  a  precept  in  summary  pro- 
ceedings, latter  part  of,  provided  for  in  section  302  of  this  act. 

§  37.  Return  day —  The  return  day  mentioned  in  the  sum- 
mons must  not  be  more  than  twelve  days  from  its  date  and 
except  in  the  case  where  an  order  of  arrest  had  been  issued, 
must  be  served  at  least  six  days  before  the  time  of  appear- 
ance. 

Notes    to   section   37. 

This  section  is  part  of  section  1298  of  the  Consolidation  Act  (Laws 
1882,  chap.  410),  with  the  "Short  summons,"  or  nonresident  pro- 
vision, omitted. 

As  to  "  order  of  arrest  "  provisions,  see  §  56.  As  to  other  or  alias 
summons,  see  §  30.  As  to  service  of  summons  on  legal  holidays,  Satur- 
day and  Sunday,  see  §  31  and  notes. 

Amendment. —  In  general  the  court  will  permit  defective  process  to 
be  amended,  in  order  to  promote  the  purposes  of  justice.  Boyd  v. 
Vandenkemp,  1  Barb.  Ch.  274. 


140  Retubn  Day.  §  37. 

The  general  subject  of  amending  process  at  common  law  and  under 
the  statute  discussed.     Leetch  v.  Atlantic  Mut.  Ins.  Co.,  4  Daly.  518. 

Computation  of  time. —  In  computing  time,  the  day  of  the  service  is 
excluded,  and  the  return  day  is  included  (Code,  §  788),  so  that  a 
summons,  dated  on  the  1st,  must  not  be  returnable  later  than  the  13th. 
2  Hill,  375;  18  Alb.  L.  J.  437.  See  also  Taylor  v.  Corbiere,  8  How. 
385;   Euston  v.   Chamb  rlain,   3  How.  412. 

The  reference  made  in  section  788  of  the  Code  of  Civil  Procedure 
does  not  limit  the  instances  in  which  the  rule  of  computation  should 
be  applied,  but  makes  the  rule  applicable  in  sections  originating  in 
courts  not  of  record.     Dorsey  v.  Pike,  40  Hun,  112. 

The  rule  is  whenever  a  whole  day,  and  every  moment  of  it,  can  be 
counted,  then  it  should  be;  but  wherever,  if  counted,  the  party  would 
in  fact  have  but  a  fractional  part  of  it,  it  should  not  be.  Phelan  v. 
Douglas,  11  How.  Pr.   193,  8  Barb.  384,  28  Barb.  284. 

In  statute  time,  the  day  on  which  the  time  begins  to  run  is  ex- 
cluded.    Judd  v.  Fulton,  4  How.  Pr.  298. 

Fraction  of  a  day  will  not  be  noticed  except  when  material  on  the 
question  of  a  lien.  Baden  v.  Buddensick,  49  How.  241;  Ball  v. 
Mander,  19  How.  468,  10  Wend.  422. 

Date  of  return. —  The  action  was  dismissed  on  the  ground  that  the 
copy  summons  served  did  not  contain  the  date  of  the  return,  but 
the  record  not  showing  that  the  paper  purporting  to  be  a  copy  was 
served  at  all,  and  it  appearing  from  the  return  and  affidavit  of  the 
marshal,  and  the  affidavit  of  plaintiff's  attorney  that  a  copy  of  the 
summons  was  personally  served,  which  was  not  traversed, —  Held,  that 
the  judgment  should  be  reversed.  Caldwell  v.  De  Korven,  66  N.  Y. 
Supp.  309. 

Day;  mode  of  computing  day;  night  time. —  A  calendar  day  includes 
the  time  from  midnight  to  midnight.  Sunday  or  any  day  of  the 
week  specifically  mentioned  means  a  calendar  day.  A  number  of  days 
specified  as  a  period  from  a  certain  day  within  which  or  after  or  before 
which  an  act  is  authorized  or  required  to  be  done,  means  such  number 
of  calendar  days  exclusive  of  the  calendar  day  from  which  the  reckon- 
ing is  made.  Sunday  or  a  public  holiday,  other  than  a  half  holiday, 
must  be  excluded  from  the  reckoning  if  it  is  the  last  day  of  any  such 
period  or  if  it  is  an  intervening  day  of  any  such  period  of  two  days. 
In  computing  any  specified  number  of  days,  weeks,  or  months,  from 
a  specified  event,  the  day  upon  which  the  event  happens  is  deemed 
the  day  from  which  the  reckoning  is  made.  The  day  from  which  any 
specified  number  of  days,  weeks,  or  months  of  time  is  reckoned  shall 
be  excluded  in  making  the  reckoning. 

Night  time  includes  the  time  from  sunset  to  sunrise. 


§  37.  Return  Day.  141 

Statutory  Construction  Act,  §  27,  as  amended  by  chap.  447,  Laws 
1894.  See  Bristed  v.  Harroll,  20  Misc.  Rep.  348;  Altman  v.  Syme,  103 
N.  Y.  54. 

Holidays. —  As  to  what  are  legal,  public,  and  half -holidays  see  notes 
to   §§    17,   31,  and  37. 

Mechanic's  lien  action. —  For  the  return  day  and  proceedings  on  the 
return  day,  see  §§  3404  and  3406,  Code  Civ.  Proc. 

Objections  to  the  service,  the  summons,  complaint,  or  other  process 
should  be  made  before  appearing  generally,  joining  issue,  answer,  or 
pleading,  otherwise  the  objection  is  waived.  An  appearance  in  court 
should  be  stated  to  be  for  the  specific  purpose  of  the  objection  only. 
Sperry  v.  Mayor,  1  E.  D.  Smith,  361;  Cunningham  v.  Phillips,  1  E.  D. 
Smith,  417;  Andrews  v.  Thorp,  1  E.  D.  Smith,  615;  Bray  v.  Andrews, 
1  E.  D.  Smith,  387;  Hogan  v.  Baker,  2  E.  D.  Smith,  22;  Dempsey  v. 
Paige,  4  E.  D.  Smith,  218;  Andreius  v.  Bull,  4  E.  D.  Smith,  384;  Inger- 
soll  v.  Gillice,  3  E.  D.  Smith,  387 ;  Miln  v.  Russell,  3  E.  D.  Smith,  303 ; 
Robinson  v.  West,  1  Sandf.  19;  Clapp  v.  Graves,  26  N.  Y.  418;  Abra- 
hamson  v.  Koch,  7  Misc.  Rep.  122. 

The  objection  that  a  summons  was  not  properly  served  is  not  avail- 
able in  an  answer  or  demurrer,  but  only  on  motion  to  set  the  proceed- 
ings aside.  Nones  v.  Hope  Mut.  Life  Ins.  Co.,  8  Barb.  541,  5  How.  96, 
3  Code  Rep.  161. 

Order  of  arrest. —  The  summons  accompanying  an  order  of  arrest 
must  be  made  returnable  immediately.     §  58. 

Substituted  service. —  The  defendant  upon  whom  such  service  has 
been  made  is  not  in  default  until  the  expiration  of  six  days  after  the 
filing  of  an  affidavit  showing  service  according  to  the  order.  Smith  v. 
Fogarty,  6  Civ.  Proc.  Rep.  366. 

Sunday  extends  from  midnight  to  midnight.'  Pulling  v.  People,  8 
Barb.  384;  Butler  v.  Kelsey,  15  Johns.  177. 

Process  cannot  be  made  returnable  on  Sunday.  Gould  v.  Spencer, 
5  Paige,' 541 ;  Boyd  v.  Vandenkemp,  1  Barb.  Ch.  373;  Arctic  Fire  Ins. 
Co.  v.  Hicks,  7  Abb.  Pr.  204. 

Sunday,  when  it  is  an  intervening  day,  is  counted,  and  is  not  excluded 
in  computing  time.  King  v.  Dowdall,  2  Sandf.  131;  Easton  v.  Chamber- 
lain. 3  How.  Pr.  412;  Taylor  v.  Corbiere,  8  How.  Pr.  385,  10  Wend.  422, 
19  How.  Pr.  468.  When  the  last  day  comes  on  Sunday  it  must  be  ex- 
cluded, and  service  upon  the  next  day  meets  the  requirements  of  this 
section.     Gribbon  v.  Freel,  93  N.  Y.  93. 

The  law  will  not  take  notice  of  parts  of  a  day,  and  where  a  statute 
permitting  a  party  to  move  upon  notice  to  set  aside  the  verdict  of  a 
jury  expressly  provides  that  the  statute  shall  take  effect  immediately, 
and  the  case  is  tried  upon  the  very  day  when  the  statute  by  its  terms 
went  into  effect,  the  courts,  deeming  the  statute  to  be  in  its  nature 
remedial,  will  hold  the  statute  to  be  applicable  to  the  case  tried  upon 
the  day  in  question.     Douglass  v.  Seiferd,  18  Misc.  Rep.  188. 


142  [ndoesement   Upon  Summons.  §38. 

§  38.  Indorsement  upon  summons —  In  an  action  to  recover 
a  penalty  or  forfeiture  given  by  a  statute  or  ordinance  if  a 
copy  of  the  complaint  is  not  delivered  to  the  defendant  with 
a  copy  of  the  summons,  a  general  reference  to  the  statute  or 
ordinance  must  be  indorsed  upon  the  copy  of  the  summons 
so  delivered  in  the  following  form :  "  According  to  the  pro- 
visions of,"  et  cetera;  adding  such  a  description  of  the  stat- 
ute or  ordinance  as  will  identify  it  with  convenient  cer- 
tainty, and  also  specifying  the  section  if  penalties  or  for- 
feitures are  given,  in  different  sections  thereof,  for  different 
acts  or  omissions,  and  the  proof  of  service  of  such  summons 
must  show  that  the  copy  served  on  the  defendant  likewise 
had  such  indorsement  thereon. 


Notes  to  section  38. 

This  section  is  substantially  section  1897  of  the  Code  of  Civil  Pro- 
cedure, and  is  taken  therefrom.  See  also  §  1,  subd.  7,  and  §  27  and 
notes. 

In  Mayor,  etc.  v.  Eisler,  10  Daly,  396;  s.  c,  2  Civ.  Proc.  Rep.  125,  it 
was  held  that  the  requirements  of  section  1897  of  the  Code  of  Civil 
Procedure  extend  to  an  action  by  the  corporation  of  the  city  of  New 
York  to  recover  a  penalty  for  violation  of  a  corporation  ordinance. 

Appearance  is  a  waiver  of  indorsement  on  summons  in  an  action  to 
recover  a  penalty.  Vernon  v.  Palmer,  48  N.  Y.  Super.  231;  Bissell  v. 
N.  Y.  C.  &  H.  R.  R.  R.  Co.,  67  Barb.  385. 

Copy  of  summons  served  must  be  so  indorsed. —  Proof  of  service  of 
a  summons,  the  original  being  properly  indorsed,  is,  it  seems,  not  proof 
that  the  summons  served  was  so  indorsed.  People  v.  Walters,  7  Civ. 
Proc.  Rep.  406,  15  Abb.  N.  C.  461. 

Insufficient  reference  to  the  statute. —  Statement  of  the  object  of  the 
action  contained  in  the  body  of  the  summons  is  not  a  sufficient  com- 
pliance with  the  statute.  In  such  an  action  the  statute  must  be  liter- 
ally complied  with,  and  the  notice  must  be  indorsed  upon,  and  not 
embodied  in  the  summons.  Cox  v.  N.  Y.  C.  &  H.  R.  R.  R.  Co.,  61  Barb. 
615,  criticised,   per  Bockes,  J.,  Schoonmaker  v.  Brooks,   24   Hun,   553. 

Held,  in  the  same  case,  that  the  rule  was  the  same,  although  the  com- 
plaint accompanied  the  summons.  This  point  ruled  otherwise  in 
People  v.  Bull,  42  N.  Y.  Super.  19;  which  is  in  accordance  with  the 
section  as  now  framed. 

Judgment  by  default. —  A  judgment  by  default  is  not  void  because 
the  summons  was  not  properly  indorsed  though  reversible  on  appeal. 
Spoor  v.  Cornell,  12  Civ.  Proc.  Rep.  319. 


§  39.  Indoksement  Upon  Summons,  Etc.  143 

No  jurisdiction. —  If  the  summons  is  not  indorsed  the  court  gets  no 
jurisdiction.     Bisscll  v.  A'.  Y.  C.  &  H.  R.  R.  R.  Co.,  07  Barb.  385. 

Ordinances  of  the  board  of  health. —  Where  proceedings  are  instituted 
against  any  person  for  a  violation  of  an  ordinance  of  the  Board  oi 
Health  of  the  city  of  New  York,  the  particular  ordinance  violated 
should  be  specified  in  the  complaint.  People  ex  rcl.  v.  The  Justices,  12 
Hun,  05.     See  also  Prussia  v.  Gunther,  10  Abb.  N.  C.  230. 

Other  cases. —  As  this  court  has  jurisdiction  to  recover  penalties 
(§  1,  subd.  7),  it  will  be  found  tiiere  are  a  large  number  of  cases  in 
which  such  an  action  may  arise.  For  instance:  For  selling  articles 
with  a  false  stamp  or  bond.  Low  v.  Hall,  47  N.  Y.  104.  For  viola- 
tion of  the  game  laws.  Bellows  v.  Elmendorf,  7  Lans.  402;  Phelps 
v.  Racey,  00  N.  Y.  10.  For  selling  lottery  tickets.  Roediger  v.  Sim- 
mons, 14  Abb.  N.  S.  250.  For  giving  theatrical  exhibitions  without 
a  license.  People  v.  Koll,  3  Keyes,  200.  For  throwing  ashes  into  New 
York  harbor.     Board  of  Commissioners  of  Pilots  v.  Frost,  5  Daly,  253. 

Sufficient  reference  to  the  statute. —  In  an  action  for  the  recovery 
of  a  penalty  for  violation  of  a  city  ordinance,  the  ordinance  was  par- 
ticularly mentioned  and  its  substance  indorsed  upon  the  summons. 
Held,  that  this  was  sufficient.     The  Mayor,  etc.  v.  Wood,  15  Daly,  341. 

A  summons  issued  in  an  action  to  recover  penalties  for  a  violation 
of  the  provisions  of  the  Excise  Law  had  upon  it  the  following  indorse- 
ment :  "  This  summons  is  issued)  to  collect  penalties  for  violation  of 
sections  13  and  14  of  the  act  to  suppress  intemperance  and  to  regulate 
the  sale  of  intoxicating  liquors,  passed  April  10,  1857,  and  the  acts 
amendatory  thereof  "  Held,  that  the  indorsement  was  sufficient. 
Ripley  v.  McCann,  34  Hun,  112. 

Summons  not  indorsed. —  A  judgment  is  not  void  because  the  sum- 
mons was  not  properly  indorsed  in  action  for  penalty  though  reversible 
on  appeal.  Spoor  v.  Cornell,  12  Civ.  Proc.  Rep.  319.  But  see  Bissell 
v.  A7.  Y.  0.  &  H.  R.  R.  R.  Co.,  07  Barb.  385. 

Waiver. —  Appearance  is  a  waiver  of  indorsement.  Vernon  v.  Palmer, 
48  N.  Y.  Super.  231;  Bissell  v.  A7.  Y.  C.  &  H.  R.  R.  R.  Co.,  07  Barb. 
385. 

Willful  trespass. —  The  summons  in  an  action  for  willful  trespass  to 
land,  though  claiming  treble  damages,  need  not  be  indorsed.  Sprague 
v.  Irwin,  27   How.  Pr.  51. 

§  39.  Indorsement  upon  summons;  where  execution  against 
the  person  may  be  issued. —  In  an  action  where  an  execution 
may  issue  against  the  person  upon  a  judgment  rendered  in 
favor  of  the  plaintiff,  unless  a  verified  complaint  is  served 
with  the  summons,  a  general  reference  to  that  fact  must  be 
indorsed  by  the  clerk  upon  the  summons  and  upon  the  copy 


144  Parties;  Appeabamtcb  of.  §40. 

to  be  served  on  defendant  in  the  following  form :  "  Plaintiff 
claims  defendant  is  liable  to  arrest  and  imprisonment  in  this 
case."  In  the  event  of  there  being  no  such  indorsement,  no 
execution  against  the  person  shall  issue,  and  the  proof,  of 
service  of  such  summons  must  show  that  the  copy  served 
on  the  defendant  likewise  had  such  indorsement  upon  it. 

Notes  to  section  39. 

This  section  is  new  and  has  been  enacted  in  order  that  a  defendant 
who  is  sued  in  a  case  where  a  body  execution  might  issue  may  be 
apprised  of  the  same.     See  §  38  and  notes,  and  §  271  and  notes. 

Judgment  where  defendant  is  liable  to  arrest. —  See  §  251. 

§  40.  Parties ;  appearance  of. —  A  party  to  an  action  in  the 
municipal  court  of  the  city  of  New  York,  who  is  of  full  age, 
may  appear  and  prosecute  or  defend  the  same,  in  person  or 
by  an  attorney,  at  his  election,  unless  he  has  been  judicially 
declared  to  be  incompetent  to  manage  his  affairs. 

Notes  to  section  40. 

This  section  is  taken  from  section  2880  of  the  Code  of  Civil  Pro- 
cedure and  was  formerly  section  1294  of  the  Consolidation  Act  (Laws 
1882,  chap.  410),  which  was  the  same  as  Laws  1857,  chap.  344,  §  9. 

Appearance. —  The  word  "  appearance  "  means  a  voluntary  submission 
to  the  jurisdiction  in  whatever  form  manifested.  People  v.  Cowan, 
146  N.  Y.  348. 

Appearance  without  objection  waives  jurisdiction.  Abrahamson  v. 
Koch,  7  Misc.  Rep.  122. 

Where  the  jurisdiction  of  a  justice  in  an  action  depends  upon  the 
voluntary  appearance  of  a  party,  such  party  may  assail  or  defend 
against  a  judgment  rendered  against  him  by  showing  that  he  did  not 
appear,  or  that  the  appearance  of  any  one  for  him  was  unauthorized. 
The  provision  of  the  Revised  Statutes  (1  R.  S.  233,  §  45).  providing 
that  the  authority  to  appear  in  justice's  court  by  attorney  must  be 
proved,  unless  admitted  by  the  opposite  party,  was  designed  simply  to 
protect  the  opposite  party  from  an  unauthorized  appearance.  A 
waiver  of  proof  by  such  party  cannot  affect  the  rights  of  the  party  for 
whom  the  appearance  is  made.  The  distinction  in  this  respect  between 
justices'  courts  and  courts  of  record  having  attorneys  pointed  out. 
Sperry  v.  Reynolds,  65  N.  Y.  180. 

Where  dofondant's  wife  appears  on  the  return  day  of  a  summons  to 
explain  his  absence,  she  is  not  his  agent,  so  as  to  constitute  an  appear- 
ance by  him.     tibrombcrg  v.   Carnese,  35  Misc.   Rep.  289. 


§40.  Parties;  Appearance  of.  145 

Id.;  failure  to  appear  on  adjourned  day  and  dismissal  of  the  action 
therefor  loses  jurisdiction  of  defendant,  and  plaintiff  cannot  thereafter 
restore  the  cause  and  take  an  inquest.  Abrams  v.  Fine,  28  Misc.  Rep. 
533,  59  N.  Y.  Supp.  550. 

Appearance  by  an  attorney  must  be  by  filing  a  verified  pleading  or 
a  written  notice  of  appearance,  or  costs  will  not  be  allowed.     See  §  332. 

Attorney's  authority  to  appear  for  a  party  is  to  be  presumed.  Oakley 
V.  Workingmen's  Union  Ben.  Soc.,  2  Hilt.  487;  People  ex  rel.  Allen  v. 
Murray,  Justice,  50  N.  Y.  St.  Rep.  535.  The  attorney  who  appears  for  the 
plaintiff  is  not  bound  to  produce  his  authority,  unless  required  by  the 
defendant  (Silkman  v.  Boiger,  4  E.  D.  Smith,  436)  ;  but  he  must  have 
his  authority  to  appear,  if  required  to  do  so  by  the  adverse  party. 
Timmerman  v.  Morrison,  14  Johrs.  359;  Beaver  v.  Van  Every,  2  Cow. 
429;  Hishfield  v.  Landman,  3  E.  D.  Smith,  208.  Parol  authority  to 
appear  is  sufficient,  and  the  attorney  himself  is  a  competent  witness 
to  prove  such  authority.  Hotchkiss  v.  Lcroy,  9  Johns.  142,  n. ;  Murray 
v.  House,  11  Johns.  464;  Scott  v.  Elmendorf,  12  Johns.  317;  Tallock- 
v.  Cunningham,  1  Cow.  256;  Pixley  v.  Rutts,  2  Cow.  421.  The  proper 
time  to  require  proof  of  the  attorney's  authority  is  upon  the  appear- 
ance and  before  joining  issue  and  going  to  trial,  and  it  is  too  late  after 
the  trial  has  commenced.  Treadwell  v.  Bruder,  3  E.  D.  Smith,  597. 
Unless  the  contrary  is  shown  by  proof,  the  appellate  court  will  assume 
that  a  person  appearing  for  a  defendant  was  duly  authorized  so  to  do 
as  his  attorney  or  agent.  Oakley  v.  Workingmen's  Union  Ben.  Soc, 
2  Hilt.  487. 

If  the  authority  of  the  attorney  to  appear  is  in  writing,  the  hand- 
writing of  the  client  may  be  established  presumptively.  Where  letters 
were  directed  by  the  attorney  to  the  client,  at  the  residence  of  the  latter, 
in  relation  to  the  subject-matter  of  a  suit,  and  several  answers  were 
received  in  due  course  of  mail,  purporting  to  be  signed  by  the  client, 
all  in  the  same  handwriting,  which  letters  contained  a  general  authority 
to  the  attorney  to  take  such  steps,  legal  or  otherwise,  as  he  might  deem 
advisable,  for  the  recovery  of  the  debt, — Held,  the  authority  was  suffi- 
ciently proved.  Bush  v.  Miller,  13  Barb.  481.  The  authority  of  the 
attorney  to  appear  may  be  inferred  from  other  matters  and  circum- 
stances, such  as  being  attorney  in  other  cases,  and  informing  his  client 
of  his  appearance  and  no  objection  expressed.  Bogardus  v.  Livingston, 
2  Hilt.   236. 

Proof  as  to  an  attorney's  authority  to  bring  an  action  for  personal 
injuries,  his  right  where  the  action  is  settled  by  his  client.  Whitesell 
v.  New  Jersey  R.  R.  Co.,  68  App.  Div.  82. 

An  attorney  appearing  for  a  party  without  authority  makes  him 
liable  for  damages.  Blodgett  v.  Conklin,  9  How.  Pr.  442;  O'Hara  v. 
Brophy,  24  How.  Pr.  379;  Ellsworth  v.  Campbell,  31  Barb.  134;  Bo- 
gardus v.  Livingston,  2  Hilt.  236. 

10 


146  Parties;   Appearance  of.  §  40. 

An  attorney  who  commences  an  action  without  authority  from  the 
plaintiff  is  not  entitled  to  compensation  or  costs.  Whitesell  v.  New 
Jersey  &  II.  /.'.  Ry.  £  Fury  Co.,  US  App.  Div.  82,  74  N.  Y.  Supp.  (108 
St.  Rep.)    217. 

General  appearance  for  defendant  by  an  attorney  confers  jurisdiction, 
although  lie  was  retained  to  appear  only  specially  to  have  service  of 
summons  set  aside,  if  he  had  authority  to  appear  at  all.  Kramer  v. 
G crlach,   28   Misc.   Rep.   525,   59  N.   Y.   Supp.   855. 

A  mere  authority  to  an  attorney  to  institute  a  suit,  being  revocable 
by  the  client,  only  entitles  the  attorney  to  compensation  for  services 
performed  before  its  revocation.  Whitesell  v.  New  Jersey  <fc  H.  R. 
Ry.  &  Ferry  Co.,  68  App.  Div.  82,  74  N.  Y.  Supp.   (108  St.  Rep.)   217. 

Not  an  attorney. —  Where  a  person,  not  regularly  admitted  to  prac- 
tice in  the  courts  of  record  of  the  State  of  New  York  and  not  a  party 
to  an  action,  conducts  it  in  this  court,  the  judgment  rendered  therein 
is  void  as  violative  of  Code  Civ.  Proc,  §§  63,  64.  Kaplan  v.  Berman, 
37  Misc.  Rep.  502. 

Attorneys  and  counselors-at-law. —  Sections  55  to  81  of  the  Code  of 
Civil  Procedure  treat  of  attorneys  and  counselors-at-law.  The  following 
sections  are  here  inserted  as  of  importance  and  beneficial  to  the  orderly 
administration  of  justice  in  this  court: 

Party  may  appear  in  person  or  by  attorney. —  A  party  to  a  civil  action 
who  is  of  full  age  may  prosecute  or  defend  the  same  in  person  or  by 
attorney,  at  his  election,  unless  he  has  been  judicially  declared  to  be 
incompetent  to  manage  his  affairs.  Each  provision  of  this  act  relating 
to  the  conduct  of  an  action  wherein  the  attorney  for  the  party  is  men- 
tioned, includes  a  party  prosecuting  or  defending  in  person,  unless 
otherwise  specially  prescribed  therein,  or  unless  that  construction  is 
manifestly  repugnant  to  the  context.  If  a  party  has  an  attorney  in 
the  action,  he  cannot  appear  to  act  in  person  where  an  attorney  may 
appear  or  act,  either  by  special  provision  of  law,  or  by  the  course  and 
practice  of  the  court.     Code  Civ.  Proc,  §  55. 

Clerks,  etc.,  sheriffs,  etc.,  not  to  practice. —  The  clerk,  deputy  clerk, 
or  special  deputy  clerk,  a  sheriff,  under  sheriff,  deputy  sheriff,  sheriff'* 
clerk,  constable,  coroner,  crier,  or  attendant  of  a  court,  shall  not,  dur- 
ing his  continuance  in  office,  practice  as  attorney  or  counselor  in  any 
court.     Code  Civ.  Proc,  §§  61,  62. 

None  but  attorneys  to  practice  in  New  York  city. —  A  person  shall 
not  ask  or  receive,  directly  or  indirectly,  compensation  for  appearing  as 
attorney  in  a  court  or  before  any  magistrate  in  the  city  of  New  York, 
or  make  it  a  business  to  practice  as  an  attorney  in  a  court  or  before  a 
magistrate  in  said  city,  unless  he  has  been  regularly  admitted  to  prac- 
tice as  an  attorney  or  counselor  in  the  courts  of  record  of  the  State. 
Code  Civ.  Proc,  §  63. 

Penalty  for  violation,  or  permitting  violation  of  last  section. —  A  per- 
son who  violates  the  last  section  is  guilty  of  a  misdemeanor,  and  shall 


§40.  Parties;  Appearance  of.  147 

be  punished  by  imprisonment  in  the  county  jail,  not  exceeding-  one 
month,  or  by  a  fine  of  not  less  than  $100  or  more  than  $250,  or  by 
both  such  fine  and  imprisonment.  A  judge,  justice,  or  magistrate  within 
the  city  of  New  York,  who  knowingly  permits  to  practice  in  his  court 
a  person  who  has  not  been  regularly  admitted  to  practice  in  the  courts 
of  record  of  this  State,  is  guilty  of  a  misdemeanor,  and  shall  be  pun- 
ished as  prescribed  in  this  section.  But  this  and  the  last  section  do 
not  apply  to  a  case  where  a  person  appears  in  a  cause  to  which  he  is 
a  part}'.     Code  Civ.  Proa,  §  04. 

Death  or  disability  of  attorney;  proceedings  thereupon. —  If  an  attor- 
ney dies,  is  removed  or  suspended,  or  otherwise  becomes  disabled  to 
act,  at  any  time  before  judgment  in  an  action,  no  further  proceeding 
shall  be  taken  in  the  action  against  the  party  for  whom  he  appeared 
until  thirty  days  after  notice  to  appoint  another  attorney  has  been 
given  to  that  party,  either  personally  or  in  such  other  manner  as  the 
court  directs.     Code  Civ.  Proc,   §  65. 

Agreement  as  to  compensation. —  The  compensation  of  an  attorney 
or  counselor  for  his  services  is  governed  by  agreement,  express  or  im- 
plied, which  is  not  restrained  by  law.  From  the  commencement  of  an 
action  or  special  proceeding,  or  the  service  of  an  answer  containing  a 
counterclaim,  the  attorney  who  appears  for  a  party  has  a  lien  upon 
his  client's  cause  of  action,  claim,  or  counterclaim,  which  attaches  to  a 
verdict,  report,  decision,  judgment,  or  final  order  in  his  client's  favor, 
and  the  proceeds  thereof  in  whosoever  hands  they  may  come;  and  the 
lien  cannot  be  affected  by  any  settlement  between  the  parties  before 
or  after  judgment  or  final  order.  The  court,  upon  the  petition  of  the 
client  or  attorney,  may  determine  and  enforce  the  lien.  Code  Civ.  Proc, 
§    66. 

Punishment  for  deceit,  etc. —  An  attorney  or  counselor,  who  is  guilty 
of  any  deceit  or  collusion,  or  consents  to  any  deceit  or  collusion,  with 
intent  to  deceive  the  court  or  a  party,  forfeits,  to  the  party  injured  by 
his  deceit  or  collusion,  treble  damages.  He  is  also  guilty  of  a  misde- 
meanor.    Code  Civ.  Proc,  §  70. 

Id.;  for  willful  delay  of  action. —  An  attorney  or  counselor  who  will- 
fully delays  his  client's  cause,  with  a  view  to  his  own  gain,  or  will- 
fully receives  money,  or  an  allowance  for  or  on  account  of  money, 
which  he  has  not  laid  out  or  become  answerable  for,  forfeits  to  the  party 
injured  treble  damages.     Code  Civ.  Proc,  §  71. 

Attorney  not  to  lend  his  name. —  If  an  attorney  knowingly  permits 
a  person,  not  being  his  general  law  partner,  or  a  clerk  in  his  office,  to 
sue  out  a  mandate,  or  to  prosecute  or  defend  an  action  in  his  name,  he, 
and  the  person  who  so  uses  his  name,  each  forfeits  to  the  party  against 
whom  the  mandate  has  been  sued  out,  or  the  action  prosecuted  or  de- 
fended, the  sum  of  $50,  to  be  recovered  in  an  action.  Code  Civ.  Proc, 
§   72. 


14S  Parties;   Appearance  <>k.  §  40. 

Attorneys,  etc.,  privileged  from  arrest. —  Is  privileged  from  arrest 
while  employed  in  a  cause.     See  Lode  Civ.  Proc,  §  565. 

Attorneys  or  counselors  cannot  be  sureties  or  become  bail. —  See 
Rule  5  of  the  Supreme  C  >urt  General  Rules  of  Practice:  Miles  \.  Clark, 
4  Bosw.  u.">2 ;  Craig  \.  Scott,  1  Wend.  :','>-.  Wheeler  \.  Wilcox,  7  Abb.  7:!; 
Coster  v.   Watson,   L5  Johns.  535. 

Where  however,  without  objection,  he  becomes  surety,  he  is  liable 
same  as  any  other  person.  Wilmont  v.  Meserole,  48  How.  430;  s.  c, 
16  Abb.   N.  S.  309. 

Attorney  who  has  served  the  summons  cannot  act  as  such  when  he 
has  been  deputed  to  and  has  served  the  summons  in  the  action.  Croker 
on  Sheriffs,  382;  Ford  v.  Smith,  11  Wend.  74;  Knight  v.  Odelt,  18  How. 
Pr.   279. 

Duty  to  act  as  guardian  of  infant  defendant,  when  ordered  by  the 
court.     Rule   50,   Supreme   Court. 

Attorney's  authority  to  settle. —  In  the  absence  of  specific  authority, 
an  attorney  to  whom  a  claim  has  been  transmitted  by  a  creditor  for 
collection  has  no  authority  to  accept  a  promissory  note  of  the  debtor, 
or  that  of  a  third  person,  in  payment  of  the  claim.  Firilay  v.  Keyword, 
35  -Misc.  Rep.  266,  revg.  s.  c,  34  Misc.  Rep.  818. 

Clerk's  fraud. —  An  attorney  having  an  arrangement  with  his  clerk  to 
share  a  counsel  fee  with  him  is  responsible  for  the  clerk's  fraud  upon 
the  client.     Matter  of  McGuinness,  69  App.   Div.  606. 

Costs  will  not  be  allowed  to  the  prevailing  party  unless  he  appeared 
by  an  attorney  who  filed  a  verified  pleading  or  a  written  notice  of 
appearance.     See  §  332. 

Failure  to  appear  on  adjourned  day  and  dismissal  of  the  action  there- 
for causes  loss  of  jurisdiction  of  defendant,  and  plaintiff  cannot  there- 
after restore  the  cause  and  take  an  inquest.  Abrams  v.  Fine,  28  Misc. 
Pep.  533,  59  X.  Y.   Supp.  550. 

Inexperience  or  negligence  of  attorney. —  'Where  an  attorney,  through 
negligence  or  inexperience,  performs  useless  labor,  he  cannot  recover 
therefor,  nor  can  he  recover  for  services  in  an  action  wherein  special 
evidence  is  necessary  by  statute,  where  he  has  failed  to  first  ascertain 
the  existence  of  such  evidence.  Leo  v.  Leyser,  30  Misc.  Rep.  549,  73 
N.  Y.  Supp.    (107  St.  Rep.)    941. 

Where  the  negligence  of  an  attorney  in  failing  to  plead  the  statute 
cf  frauds  as  a  defense  to  an  action  brought  against  his  client,  results 
in  the  client's  entire  defeat  therein,  the  latter  may  counterclaim  his 
resulting  damages  against  the  attorney's  demand  for  the  value  of  his 
services  in  that  action.     Patterson  v.  Powell,  31  Misc.  Rep.  20. 

Lien  of  attorney. —  An  attorney's  lien  on  his  client's  cause  of  action 
for  fees  and  costs  under  Code  Civ.  Proc,  §  66,  where  a  plea  of  accord 
and  satisfaction  lias  been  interposed,  cannot  be  enforced  without  an 
order  of  court  to  allow  the  prosecution  of  the  action,  notwithstanding 


§  41  Guardian  ad  Litem.  149 

the  settlement.  Doyle  v.  New  York,  O.  d  W.  Ry.  Co.,  66  App.  Div.  398, 
72  N.  Y.   Supp.    (106  St.  Rep.)    936. 

Notice  of  lien  not  necessary. —  An  attorney  need  not  give  the  other 
side  notice  of  his  lien,  as  section  66  is,  in  and  of  itself,  notice.  Dolliver 
v.  American  Boat  Co.,  32  Misc.  Rep.  264;  Yrooman  v.  Pickering,  25 
Misc.   Rep.   277. 

Enforcement  of  attorney's  lien. —  A  settlement  made  by  the  defend- 
ant, after  judgment,  directly  with  a  destitute  plaintiff,  in  disregard  of 
the  agreed  lien  of  her  attorney  for  one-half  of  the  amount  of  any  settle- 
ment and  costs,  will  be  set  aside  at  the  instance  of  the  attorney,  al- 
though he  had  never  given  either  the  defendant  or  his  attorney  notice 
of  the  lien.     Yrooman  v.  Pickering,  25  Misc.  Rep.  277. 

The  lien  attaches  to  the  sum  or  value  agreed  upon  in  settlement,  and 
he  should  foreclose  it  thereon  by  a  suit  in  equity,  making  his  client 
and  the  defendant  parties,  and  may  obtain  an  absolute  judgment  against 
his  client  for  the  amount  of  his  compensation,  with  an  alternative  pro- 
vision that  the  defendant  shall  pay  the  amount  found  due  under  the 
lien,  if  it  cannot  be  collected  of  the  client.  Dolliver  v.  American  Boat 
Co.,  32  Misc.  Rep.  264. 

Marshal. —  By  section  293  a  marshal  is  prohibited  to  appear  or  act 
on  behalf  of  any  party  in  this  court. 

Party  may  settle  notwithstanding  attorney. —  Notwithstanding  the 
provisions  of  section  66  of  the  Code  of  Civil  Procedure,  giving  plain- 
tiff's attorney  a  lien  on  his  client's  cause  of  action,  the  latter  may, 
before  trial  and  without  regard  to  his  attorney,  settle  the  action 
with  the  opposite  party,  and,  provided  the  settlement  is  not  collusive 
or  fraudulent  as  to  the  attorney,  that  is  to  say,  not  intended  by  the 
parties  to  prevent  him  from  getting  his  compensation,  but  is  honest, 
the  attorney's  lien  on  the  cause  of  action  thereby  ceases,  and  he  may 
not  continue  the  action  for  his  own  benefit,  and  to  foreclose  his  lien. 
Dolliver  v.  American  Boat  Co.,  32  Misc.  Rep.  264. 

Value  of  services  of  an  attorney. —  In  determining  the  value  of  ser- 
vices of  an  attorney,  besides  the  conditions  connected  with  the  sub- 
ject-matter, the  professional  standing  of  the  claimant,  his  reputation 
in  the  specialty  in  which  he  was  engaged,  and  the  importance  of 
the  work  done,  measured  by  the  values  involved,  the  time  taken,  and 
the  result  of  the  services,  are  to  be  considered.  Schlesinger  v.  Dunne, 
36  Misc.  Rep.  529,  73  N.  Y.  Supp.   (107  St.  Rep.)   1014. 

§  41.  Guardian  ad  litem. —  When  a  guardian  is  necessary 
he  must  be  appointed  by  the  court  as  follows : 

1.  If  the  infant  be  plaintiff,  the  appointment  must  be 
made  before  the  summons  is  issued,  upon  the  application  of 
the  infant,  if  he  be  of  the  age  of  fourteen  years  or  upwards; 


150  Giakiman   ad  Litem.  §41 

if  under  thai  ago,  upon  the  application  of  some  relative  or 
friend.  The  consent  in  writing  of  the  guardian  to  be  ap- 
pointed and  to  be  responsible  for  costs,  if  he  fail  in  the 
action,  musl  be  filed  with  the  clerk  of  the  court,  in  the  dis- 
trict in  which  the  action  is  brought,  except  in  cases  where  a 
free  summons  is  provided  for  by  this  act. 

2.  After  the  service  and  return  of  a  summons  against  an 
infant  defendant  no  other  proceedings  shall  be  taken  in  the 
action,  until  a  person  has  been  appointed  to  appear  as  his 
guardian  for  the  purpose  of  the  action.  Upon  the  nom- 
ination of  the  defendant,  the  court  must  appoint  a  proper 
person  for  that  purpose.  If  the  defendant  does  not  ap- 
pear upon  the  return  of  the  summons,  or  if  he  neglects  or 
refuses  to  nominate,  the  court  may,  on  the  application  of 
the  plaintiff,  appoint  any  proper  person  as  his  guardian. 
The  written  consent  of  the  person  so  appointed,  must  be 
filed  with  the  clerk  of  the  court  before  his  appointment. 
The  guardian  so  appointed  is  not  responsible  for  any  costs. 

Notes  to  section  41. 

This  section  is  taken  from  section  1295  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  which  has  been  repealed,  and  from  section 
2888  of  the  Code  of  Civil  Procedure,  which  was  the  same  as  Laws 
1857,  chap.  344,  §  11. 

When  to  be  appointed. —  The  appointment  of  guardian  must  be  made 
before  the  issuing  of  the  summons,  for  if  not  made  until  after  the  sum- 
mons issues,  the  proceedings  are  irregular.  Hill  v.  Thacter,  2  Code  R. 
3;  Smart  v.  McChesney,  14  Hun,  276;  Croghan  v.  Livingston,  17  N.  Y. 
221. 

An  infant  defendant  must  always  have  and  appear  by  guardian  (2 
Johns.  192,  8  Johns.  418,  9  Johns.  160,  6  Wend.  526),  even  where  the 
infant  is  sued  with  others  (2  Johns.  192,  11  Johns.  460,  14  Johns.  417, 
11  Wend.  612),  and  a  justice  has  no  right  to  proceed  with  the  action 
until  a  guardian  has  been  appointed.     Harney  v.  Large,  51  Barb.  222. 

He  can  arrest  the  trial  and  appoint  a  guardian.  Harney  v.  Large, 
51  Barb.  222. 

Where  defendant  is  an  infant,  and  that  objection  is  raised,  the 
justice  must  appoint  a  guardian  ad  litem  for  him,  and  his  refusal  to 
do  so  is  error.     Jessurun  v.  Maclcie,  24  Hun,  624;   s.  c,  61  How.  261. 

"  It  is  for  the  protection  of  such  persons  against  what  the  law  ad- 
judged to  be  their  own  incompetency  to  choose  attorney,  or  to  conduct 


§42.  Parties;  Who  May  be  Joined.  151 

their  own  litigations  with  suitable  prudence  and  discretion."  Per 
Johnson,  J.,  in  Boylen  v.  McAvoy,  29  How.  278. 

Failure  to  appoint  a  guardian  ad  litem  for  an  infant  defendant 
is  an  irregularity  for  which  the  judgment  must  be  reversed,  if  prop- 
erly and  timely  presented.     Frost  v.  Frost,  15  Misc.  Rep.  167. 

No  judgment  would  be  valid  without  such  appointment.  Fish  v. 
Ferris,  3  E.  D.  Smith,  569. 

Consent  to  be  responsible  for  costs  must  be  signed  and  filed  by  guard- 
ian ad  litem  as  a  condition  of  maintaining  the  action.  Weinstraub  v. 
Metropolitan  Life  Ins.  Co.,  27  Misc.  Rep.  540,  58  N.  Y.  Supp.  295. 

Duty  of  attorney  to  act  as  guardian. —  It  shall  be  the  duty  of  every 
attorney  or  officer  of  the  court  to  act  as  the  guardian  of  any  infant 
•defendant,  in  any  suit  or  proceeding  against  him,  whenever  appointed 
for  that  purpose  by  an  order  of  this  court.  And  it  shall  be  the  duty 
of  such  guardian  to  examine  into  the  circumstances  of  the  case,  so 
far  as  to  enable  him  to  make  the  proper  defense,  when  necessary  for 
the  protection  of  the  rights  of  the  infant;  and  he  shall  be  entitled 
to  such  compensation  for  his  services  as  the  court  may  deem  reasonable. 

But  no  order  allowing  compensation  to  a  guardian  ad  litem  shall  be 
made,  except  upon  an  affidavit,  to  be  made  by  such  guardian,  if  an  at- 
torney of  vhe  court ;  or  if  the  guardian  be  not  an  attorney,  then  on 
affidavit  to  be  made  by  an  attorney  of  the  court  who  has  acted  in 
the  matter  in  behalf  of  such  guardian,  showing  that  he  has  examined 
into  the  circumstances  of  the  case,  and  has,  to  the  best  of  his  ability, 
made  himself  acquainted  with  the  rights  of  his  ward,  and  that  such 
guardian  has  taken  all  the  steps  necessary  for  the  protection  of  such 
rights,  to  the  best  of  his  knowledge,  and  as  he  believes,  stating  what 
has  been  done  by  him  for  the  purpose  of  ascertaining  the  rights  of  the 
ward.  Rule  50  of  Supreme  Court  made  applicable  by  section  20  of 
this  act. 

Infant;  right  to  bring  action  as  provided  for  in  section  468  of  the 
Code  of  Civil  Procedure,  is  made  applicable  by  section  3347  of  said 
Code. 

Parent  and  child;  wages. —  In  general,  whatever  a  child  earns  belongs 
to,  and  is  to  be  recovered  in  the  name  of  the  parent;  where  there  is 
no  agreement,  express  or  implied,  that  payment  may  be  made  to  the 
child,  the  parent  alone  is  entitled  to  his  earnings,  and  the  action 
must  be  brought  in  his  name.  Shute  v.  Dorr,  5  Wend.  204;  Letts  v. 
Brooks,  Hill  &  Den.  Supp.  36. 

§  42.  Parties ;  who  may  be  joined. —  Parties  plaintiff  or 
defendant  may  be  joined  as  follows : 

1.  All  persons  having  an  interest  in  the  subject  of  the 
action,  and  in  obtaining  the  judgment  demanded,  may  be 


152  Parties;  Who  May  be  Joined.  §42. 

joined  as  plaintiffs,  except  as  otherwise  expressly  prescribed 
in  this  act. 

2.  Any  person  may  be  made  a  defendant  who  has  or  claims 
an  interest  in  the  controversy  adverse  to  the  plaintiff,  or 
who  is  a  necessary  party  defendant,  for  the  complete  deter- 
mination  or  settlement  of  a  question  involved  therein,  ex- 
cept as  otherwise  expressly  prescribed  in  this  act. 

3.  Every  action  must  be  prosecuted  in  the  name  of  the 
real  party  in  interest,  except  that  an  executor  or  admin- 
istrator, a  trustee  of  an  express  trust,  or  a  person  expressly 
authorized  by  statute,  may  sue,  without,*  joining  with  him 
the  person  for  whose  benefit  the  action  is  prosecuted.  A 
person,  with  whom  or  in  whose  name,  a  contract  is  made 
for  the  benefit  of  another,  is  a  trustee  of  an  express  trust, 
within  the  meaning  of  this  section. 

4.  In  an  action  or  special  proceeding  a  married  woman 
appears,  prosecutes  or  defends  alone  or  joined  with  other 
parties  as  if  she  was  single.  It  is  not  necessary  or  proper  to 
join  her  husband  with  her  as  a  party  in  any  action  or  special 
proceeding  affecting  her  separate  property.  The  husband 
is  not  a  necessary  or  proper  party  to  an  action  or  special 
proceeding  to  recover  damages  to  the  person  or  estate  of  his 
wife,  and  all  sums  that  may  be  recovered  in  such  actions, 
or  special  proceedings  shall  be  the  separate  property  of  the 
wife.  The  husband  is  not  a  necessary  or  proper  party  to 
an  action  or  special  proceeding  to  recover  damages  to  the 
person,  or  estate,  of  another  on  account  of  the  wrongful  acts 
of  his  wife  committed  without  his  instigation. 

5.  Two  or  more  persons,  severally  liable  upon  the  same 
written  instrument,  including  the  parties  to  a  bill  of  ex- 
change or  a  promissory  note,  whether  the  action  is  brought 
upon  the  instrument,  or  by  a  party  thereto  to  recover  against 
other  parties  liable  over  to  him;  may,  all  or  any  of  them, 
be  included  as  defendants  in  the  same  action,  at  the  option 
of  the  plaintiff,  and  the  joinder  of  a  person,  as  defendant 
in  an  action,  with  another  person  as  prescribed  in  this  sec- 
tion, does  not  affect  his  right,  to  any  order  or  other  relief, 
to  which  he  would  have  been  entitled,  if  he  had  been  sepa- 
rately sued  in  the  action. 

*  The  comma   after  the  word  "without"  is  in  the  original. 


§  43.  Defendants  Jointly  Liable.  153 

Notes  to  section  42. 

This  is  a  new  section:  We  pointed  out  in  the  Fourth  Edition  of  thig 
work,  on  page  141,  in  our  note  to  section  1297  of  the  Consolidation 
Act,  entitled  "  The  summons."  that  there  was  no  mention  made  of 
parties  plaintiff  in  that  section,  and  that  there  is  no  section  in  the 
Consolidation  Act  treating  of  parties;  but  that  provisions  of  law  on 
that  subject  were  certainly  necessary,  and  we  thought  the  most  ap- 
propriate place  to  insert  them  was  under  section  1297.  We  further 
pointed  out  that  sections  446,  449,  450,  and  454  of  chapter  5,  title  II, 
"  Parties  to  Action."  article  first,  "  Parties  Generally,"  of  the  Code 
of  Civil  Procedure,  are  made  applicable  to  this  court  by  section  3347, 
subdivision  3  of  the  Code. 

The  Legislature  has  now  revised  these  sections  of  the  Code  and 
embodied  them  in  the  five  subdivisions  of  this  section. 

Subdivision  1  is  taken  as  a  whole  from  section  446. 

Subdivision  2  is  made  up  of  section  447,  which  was  not  made  ap- 
plicable by  section  3347. 

Subdivisions  3  and  4  are  the  same  as  sections  449  and  450,  re- 
spectively. 

Subdivision  5  is  composed  of  sections  454  and  455.  See  also  section 
146,  "  What  causes  of  action  may  be  joined  in  the   same   complaint." 

For  decisions  upon  these  sections  of  the  Code  we  refer  the  practi- 
tioner to  the  numerous  and  various  decisions  to  be  found  in  the 
copiously  annotated  Codes  of  Civil  Procedure. 

Department  of  health. —  Parties  defendant  to  an  action  by  the  depart- 
ment of  health  may  be  all  who  participated  in  the  act,  refusal,  or 
omissions  complained  of,  and  the  recovery  may  be  against  one  or  more, 
as  the  justice  directs.     Charter,  §   1262. 

Milk  and  cream  cans. —  The  agent  of  the  owner,  dealer,  or  shipper  has 
full  power  to  sue  in  his  own  name  without  joining  the  real  party  in 
interest  that  he  represents,  and  may  join  in  one  proceeding  as  plain- 
tiffs or  defendants,  or  both,  as  many  different  persons  as  shall  jointly 
or  severally  have  violated  any  of  the  provisions  of  this  act,  notwith- 
standing that  the  cause  of  action  is  separate  and  distinct  as  to  each 
and  every  one  of  such  plaintiffs  and  defendants,  and  may  recover 
against  any  one  or  more  of  such  person  or  persons.  Laws  1896,  chap. 
376    (Domestic  Commerce  Law),  §  29. 

§  43.  Application  of  this  article  to  defendants  jointly  liable. 
—  The  last  section  does  not  affect  a  defense  or  other  objec- 
tion of  a  defendant,  growing  out  of  the  failure  to  join  in 
the  action  two  or  more  persons  jointly  liable;  and  as  re- 
gards the  other  parties  to  the  action,  persons  jointly  liable 


154  Where  Employee  is  Party.  §44. 

are  regarded  as  one  party,  for  every  purpose  contemplated 
by  that  section. 

Notes  to  section  43. 

This  section  is  taken  from  section  457  of  the  Code  of  Civil  Procedure. 
See  notes  to  §  42. 

There  is  no  "  article  '*  applicable  to  defendants  jointly  liable.  This 
section  is  included  v.  title  II,  "Actions;  Summons,  Parties,"  which 
contains  no  article. 

Action  against  joint  debtors  not  served. —  See  §  268. 

§  44.  Where  employee  is  party. —  When  an  action  is 
brought  by  an  employee  against  an  employer  for  services 
performed  by  such  employee,  male  or  female,  the  clerk  of 
the  said  municipal  court  in  the  district  in  which  the  action 
is  brought,  shall  issue,  a  free  summons  when  the  plaintiff's 
demand  is  less  than  fifty  dollars  and  the  plaintiff  is  a  resi- 
dent of  the  city  of  New  York,  and  proof  by  the  plaintiff's 
own  affidavit  that  he  has  a  good  and  meritorious  cause  of 
action  and  of  the  nature  of  such  action  and  of  said  plain- 
tiff's residence,  and  whether  previous  application  therefor 
has  been  made,  shall  be  duly  presented  to  and  filed  with 
the  clerk  of  the  municipal  court  where  such  action  shall  be 
brought  and  he  shall  not  demand  or  receive  any  fee  what- 
soever from  the  plaintiff  or  his  agents  or  attorneys  in  such 
action,  unless  the  plaintiff  shall  demand  a  trial  jury,  in 
which  case  the  plaintiff  must  pay  to  the  clerk  of  the  munic- 
ipal court  where  such  action  shall  be  pending  the  sum  of 
four  dollars  and  fifty  cents. 

Notes  to  section  44. 

This  section  was  formerly  the  larger  part  of  section  1416.  subdivision 
9  of  the  Consolidation  Act  (Laws  1882,  chap.  410),  as  amended  by 
Laws  1887,  chapter  307,  page  380,  and  contained  in  the  Charter  of 
1897,  as  amended  in  1901,  and  is  substantially  the  same.  See  also 
§§  45  to  53  of  this  act,  as  to  prosecution  and  defense  by  a  poor  person. 

Costs  in  action  by  working-woman. —  See  §  340. 

Execution. —  As  to  execution  in  favor  of  "  employee,"  or  "  wage- 
earner,"  see  §  274. 

Judgment  in  favor  of  wage-earners. —  See  §  274.  and  notes. 

Jury  trial. —  As  to  trial  by  jury,  drawing  the  jury,  etc.,  see  §  231. 


§  45.  Prosecution  as  Poor  Person.  155 

§  45.  Who  may  petition  for  leave  to  prosecute  as  a  poor  per- 
son.—  A  person  whether  an  adult  or  infant,  who  alleges  that 
he  has  a  cause  of  action  against  another  person,  may  apply 
by  petition  to  the  court  for  leave  to  prosecute  as  a  poor 
person,  and  to  have  an  attorney  and  counsellor  assigned  to 
conduct  his  action. 

Notes  to  section  45. 

This  section  is  taken  from  section  458  of  the  Code  of  Civil  Procedure, 
which  was  made  applicable  to  this  court  by  section  3347,  subdivision 
3  of  said  Code. 

Poor  person  defined. —  Isnard  v.  Cazeaux,  1  Paige,  39. 

Application,  when  can  be  made. —  A  motion  to  sue  as  a  poor  person 
may  be  made  after  action  brought  and  any  time  during  its  pendency, 
and  is  not  barred  by  an  order  to  file  security  for  costs.  Shapiro  v. 
Burns,  7  Misc.  Rep.  418;  s.  c,  31  Abb.  N.  C.  144. 

Guardian. —  A  guardian  cannot  sue  in  forma  pauperis.  The  reasons 
stated.  In  re  Daly,  McAdam,  J.,  1  City  Ct.  Rep.  437.  To  the  con- 
trary.     Irving  v.  Garritty,  13  Abb.  N.  C.   182. 

Infant  can  sue  as  a  poor  person.  Erickson  v.  Poey,  5  Civ.  Proc. 
Rep.  379,  387;  affd.,  s.  c,  90  N.  Y.  669;  Hickman  v.  Mackey,  19  Abb. 
N.  C.   394. 

Wealth  of  guardian  ad  litem. —  The  wealth  or  poverty  of  the  guardian 
ad  litem,  though  father  of  tne  plaintiff,  is  no  answer  to  the  motion  for 
leave  to  sue  as  a  poor  person.  Shapiro  v.  Burns,  7  Misc.  Rep.  418 ; 
s.  c,  31  Abb.  N.  C.  144;  Ryan,  A.dmr.  v.  Potter,  4  Civ.  Proc.  Rep.  80. 

Nonresident  cannot  sue  as  poor  person,  at  least  doubted.  Thomas 
v.  ^Yilson,  6  Hill,  257;  Alexander  v.  Myers,  8  Daly,  112. 

Cannot  be  done.  Anonymous,  TO  Abb.  N.  C.  80;  Christian  v.  Gonge, 
10  Abb.  N.  C.  82. 

Fees. —  Poor  person  may  prosecute  without  paying  any  fees  to  any 
officer.  Code  Civ.  Proc,  §  461,  made  applicable  by  section  3347  of  sub- 
division 3  of  said  Code. 

Jury  fees. —  If  a  jury  trial  is  demanded  by  a  person  suing  in  forma 
pauperis,  it  seems  that  a  strict  adherence  to  the  statute  does  not  en- 
title him  to  exemption  from  payment  of  jury  fees  on  demanding  a 
jury.  Section  231  provides  for  the  payment  of  the  jurors'  fees  for 
summoning  the  jury.  Section  461  of  the  Code  of  Civil  Procedure  made 
applicable  to  this  court  by  section  3347,  subdivision  3  of  said  Code, 
specifies  "  without  paying  fees  to  any  officer,"  and  jurors  are  not 
"  officers." 

Practice  on  removal  of  action  of  poor  person. —  See  notes  to  §  3  of 
this  act,  "  Proceedings  after  removal  in  Citv  Court." 


156  Puosecutioh   AS  Pook  PlilirSOX.  §  46. 

Statute  to  be  strictly  construed. —  The  statute  in  reference  to  per- 
mitting  persons  to  sue  in  forma  pauperis,  should  be  strictly  construed. 
The  reasons  stated.     Zemier  v.  Schmaltz,  1  City  Ct.  Rep.  435. 

Security  for  costs. —  Plaintiff  cannot  be  required  to  hie  security  for 
costs,  if  permitted  to  sue  in  forma  pauperis,  nor  permitted  so  to 
prosecute  if  required  to  file  such  security.  Florence  v.  Bulkley,  12 
X.  Y.  Leg.  Obs.  28. 

§  46.   Contents  of  petition. —  The  petition  must  state : 

1.  The  nature  of  the  action  brought  or  intended  to  be 
brought. 

2.  That  the  applicant  is  not  worth  one  hundred  dollars, 
besides  the  wearing  apparel  and  furniture  necessary  for 
himself  and  his  family,  and  the  subject  matter  of  the  action 
and  whether  he  has  made  any  previous  application  for  leave 
to  sue  as  a  poor  person.  It  must  be  verified  by  the  appli- 
cant's affidavit,  unless  the  applicant  is  an  infant  under  the 
age  of  fourteen  years,  and  in  that  case  by  the  affidavit  of 
his  guardian  appointed  in  said  action,  and  supported  by  a 
certificate  of  a  counsellor  at  law  to  the  effect  that  he  has 
examined  the  case  and  is  of  the  opinion  that  the  applicant 
has  a  good  cause  of  action.  The  petition  may,  however, 
be  verified  before  the  clerk  or  assistant  clerk  of  said  munic- 
ipal court  in  the  district  in  which  the  action  is  brought, 
and  the  certificate  of  said  clerk  or  assistant  clerk,  that  he 
has  inquired  into  the  facts  of  the  case  and  that  in  his  opin- 
ion the  plaintiff  has  a  prima  facie  cause  of  action,  shall  have 
the  same  force  and  effect  as  the  certificate  of  an  attorney. 

Notes  to  section  46. 

This  section  is  taken  from  section  459  of  the  Code  of  Civil  Pro- 
cedure. 

When  not  sufficient. —  A  petition  by  an  infant  for  leave  to  prosecute 
an  action  as  a  poor  person,  which  merely  states  that  the  petitioner 
has  not  now  the  means  to  prosecute  the  action,  but  does  not  state 
that  she  cannot  procure  such  means,  or  that  she  will  be  unable  to 
present  her  cause  unless  the  order  is  granted,  and  which  further  states 
that  the  petitioner  receives  wapes,  but  does  not  show  the  amount  or 
disposition  thereof,  or  that  her  parents  are  unable  to  support  her,  is 
insufficient  to  justify  the  granting  of  the  order.  Kaufmann  v.  Man- 
hattan R.  R.  Co.,  68  App.  Div.  94. 


§§  47,  48,  49.     Prosecution  as  Poor  Persox.  157 

§  47.  Order  and  petition  to  be  filed ;  when  counsel  assigned. — 
The  court  to  which  the  petition  is  presented,  if  satisfied  of 
the  truth  of  the  facts  alleged,  and  that  the  applicant  has  a 
good  cause  of  action,  may,  by  order,  which  may  be  endorsed 
on  petition,  admit  him  to  prosecute  as  a  poor  person,  and 
where  there  is  a  certificate  of  a  counsellor  at  law,  as  pre- 
scribed in  the  last  section,  may  assign  to  him  an  attorney 
and  counsel  to  prosecute  his  action,  who  must  act  therein 
without  compensation.  Such  petition  and  order  must  be 
filed  with  the  clerk  of  the  court  in  the  district  in  which  the 
action  is  brought. 

Note  to  section  47. 

This  section  is  taken  from  section  460  of  the  Code  of  Civil  Pro- 
cedure. 

§  48.  When  leave  may  be  annulled. —  If  the  person  so  ad- 
mitted is  guilty  of  deception  in  the  petition  or  of  improper 
conduct  in  the  prosecution  of  the  action,  or  of  wilful  or 
unnecessary  delay,  the  court  may,  in  its  discretion,  annul 
the  order,  admitting  him  to  prosecute  as  a  poor  person;  and 
he  shall  thereafter  be  deprived  of  all  the  privileges  con- 
ferred thereby. 

Notes  to  section  48. 

This  section  is  substantially  the  same  as  section  462  of  the  Code  of 
Civil  Procedure. 

Agreement  with  the  attorney,  whereby  he  has  an  interest  in  any 
recovery,  as  compensation  for  his  services,  is  fatal  to  plaintiff's  right 
to  continue  the  action  as  a  poor  person,  and  in  such  case  an  order 
permitting  the  prosecution  will  be  reversed.  Cahill  v.  Manhattan  tty. 
Co.,  38  App.  Div.  314.  57  N.  Y.  Supp.  10. 

Notice. —  A  party  to  whom  leave  has  been  granted  to  sue  as  a  poor 
person  who  neglects  to  call  the  attention  of  his  opponent  or  the  court 
to  the  order  until  after  the  entry  of  judgment  and  taxation  of  costs 
loses  all  rights  under  the  order.  Oakes  v.  High  et  al.,  11  Misc.  Rep. 
313. 

§  49.  When  defendant  may  defend  as  a  poor  person,  et  cetera. 
—  A  defendant  in  an  action  in  said  court  may  petition  the 
court  in  which  the  action  is  pending  for  leave  to  defend  the 
action  as  a  poor  person,  and  to  have  an  attorney  and  coun- 
sellor assigned  to  conduct  his  defense;  as  follows: 


158  Pkosecutio:nt   as    Pook   Peeson.        §§  50,  51. 

1.  By  an  oral  application  made  in  open  court,  by  defend- 
ant, on  the  return  day,  and  a  statement  under  oath,  of  the 
same  matters,  respecting  his  ability  as  are  required  to  be 
contained  in  a  petition  for  leave  to  prosecute  as  a  poor  per- 
son; or 

2.  By  a  petition  verified  before  the  clerk  or  assistant 
clerk,  accompanied  by  his  certificate  relating  to  the  defense 
in  the  same  manner  as  prescribed  in  section  forty-two  of 
this  act;  or 

3.  By  a  verified  petition  supported  by  a  certificate  of  a 
counsellor  at  law  relating  to  the  defense,  in  the  same  man- 
ner as  prescribed  in  section  forty-two  of  this  act. 

Note  to  section  49. 

This  section  is  constructed  from  sections  463  and  464  of  the  Code 
of  Civil   Procedure. 

§  50.  Defendant's  order. —  The  court  to  which  the  applica- 
tion is  made  or  petition  is  presented  as  prescribed  in  the 
last  section,  if  satisfied  of  the  truth  of  the  facts  stated  as  to 
defendant's  ability,  and  that  the  applicant  has  a  good  de- 
fense if  proved  on  the  trial,  may,  by  order,  admit  him  to 
defend  as  a  poor  person  and  may  assign  counsel  to  conduct 
his  defense,  or  may,  in  case  of  verified  pleadings,  direct  the 
clerk  or  assistant  clerk  of  said  court,  to  prepare  and  file  an 
answer,  verified  before  him  by  defendant,  or  may  assign 
a  counsellor  at  law  present  in  court  to  prepare  and  file  an 
answer  which  may  be  verified  before  the  clerk  or  assistant 
clerk  of  said  court. 

Note  to  section  50. 

This  section  is  new,  and  necessarily  follows  the  granting  of  the 
application  mentioned  in   section  49. 

§  51.  Leave  may  be  annulled  as  in  case  of  plaintiff. —  The 

provisions  relating  to  an  order  to  be  made  upon  an  applica- 
tion for  leave  to  prosecute  as  a  poor  person  and  the  pro- 
ceedings subsequent  thereto  apply  to  an  order  and  subse- 
quent proceedings  upon  an  application  for  leave  to  defend 
as  a  poor  person. 


§§  52,  53.   Appeal  by  Poor  Person,  Etc.         159 

Note  to  section  51. 

This  section  is  the  same  as  section  405  of  the  Code  of  Civil  Pro- 
cedure. 

§  52.  Appeal  where  plaintiff  or  defendant  poor  person. —  An 
order  made  as  prescribed  in  this  article,  does  not  authorize 
the  petitioner  to  take  or  maintain  an  appeal  as  a  poor  per- 
son; but  where  an  appeal  is  taken  by  the  adverse  party  the 
order  is  applicable  in  favor  of  the  petitioner  as  respondent 
in  the  appeal. 

Note  to  section  52. 

This  section  is  the  same  as  section  466  of  the  Code  of  Civil  Pro- 
cedure. 

§  53.  Costs  in  favor  of  petitioner. —  Where  costs  are 
awarded  in  favor  of  a  person  who  had  been  admitted  to 
prosecute  or  defend  as  a  poor  person  as  prescribed  in  this 
article,  they  must  be  paid  over  to  his  attorney,  when  col- 
lected from  the  adverse  party  and  distributed  among  the 
attorneys  and  counsel  assigned  to  the  poor  person,  as  the 
court  directs. 

Notes  to  section  53. 

This  section  is  the  same  as  section  467  of  the  Code  of  Civil  Pro- 
cedure, so  much  so  that  the  words  "  as  prescribed  in  this  article  "  have 
been  retained,  whereas  there  is  no  "  article  "  of  title  II,  entitled  "'  Ac- 
tions; Summons;  Parties/'  commencing  with  section  25  and  ending 
with  this  section. 

Costs. —  The  court  will  not  exempt  the  applicant  from  liability  for 
costs  accrued  before  the  application.  Lyons  v.  Murat,  4  Abb.  N.  C.  13. 

Stay. —  Where  the  action  is  in  forma  pauperis  it  cannot  be  stayed  on 
account  of  the  nonpayment  of  costs  awarded  against  the  plaintiff 
in  a  previous  action.    Herbert  v.  Drake,  2  City  Ct.  Rep.  175. 

Note. —  There  is  no  section  54. 


160  Provisional   Remedies,   Etc.  §  55. 


TITLE  III. 

Provisional   Remedies;    and   Actions    to    Foreclose   a    Lien   on    a 

Chattel. 
Article     I.  Order  of  arrest. 
II.  Attachment. 
III.  Replevin. 
IV.  Action  to  foreclose  a  lien  on  a  chattel. 

ARTICLE  I. 
Order  of  Arrest. 

Section  55.  Process  to  be  served  by  marshal. 

56.  In  what  cases  order  of  arrest  to  be  granted. 

57.  Affidavit  and  undertaking   upon   granting 

58.  What  to  direct. 

59.  Papers    to    be    delivered    to    arrested    person;    proceedings 

thereupon. 

60.  Proceedings   in  case  justice   is  a   witness. 

61.  Plaintiff  to  be  notified  of  arrest. 

62.  Bail   or   deposit  before  return. 

63.  Bail   may  be  examined. 

64.  Bail  or  deposit  after  return. 

65.  When  and  how  defendant  to  remain  in  custody. 

66.  Duty  of  marshal. 

67.  Undertaking   by   arrested   defendant   on   applying   for   ad- 

journment. 

68.  Motion  to  discharge  from  arrest. 

69.  Privilege  from  arrest. 

70.  Sections  applicable  as  to  undertakings,  et  cetera. 

§55.  Process  to  be  served  by  marshal. —  An  order  of 
arrest,  warrant  of  attachment  or  requisition  to  replevy, 
issued  by  or  out  of  the  municipal  court  of  the  city  of  New 
York,  shall  be  served  and  executed  by  a  marshal  of  the 
city  of  New  York. 

Note  to  section  55. 

This  section  is  taken  from  section  1302  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  leaving  out  the  words  "other  process,  issued 
by  or  out  of  this  court,"  so  that  it  is  no  longer  required  that  the  mar- 
shal shall  serve  the  summons,  leaving  this  section  consistent  with  sec- 
tion 36,  by  which  any  person  not  a  party  to  the  action  who  is  over 
eighteen  years  of  age,  may  serve  the  summons. 


§  56  AND  SlTBD.  1.         OfiDEE    OF    ArREST.  161 

§  56.  In  what  cases  order  of  arrest  to  be  granted An  order 

to  arrest  the  defendant  must  or  may  be  granted,  directed 
to  any  marshal  of  said  city,  in  the  following  cases,  but  no 
female  can  be  arrested  except  for  a  wilful  injury  to  person 
or  property : 

1.  In  an  action  for  the  recovery  of  damages,  in  a  cause 
of  action  not  arising  on  contract,  when  the  defendant  is  not 
a  resident  of  the  city  of  New  York,  or  is  about  to  remove 
therefrom,  or  when  the  action  is  for  a  wilful  injury  to  per- 
son or  property. 

Notes  to  section  56. 

This  section  is  substantially  the  same  as  section  1304  of  the  Con- 
solidation Act  (Laws  1882,  chap.  410),  which  section  was  taken  from 
the  old  District  Court  Act  (Laws  1857,  chap.  344,  §  16),  with  the  pro- 
vision as  to  the  arrest  of  a  female,  which  was  formerly  contained  in 
the  last  subdivision  of  section  1304  of  the  Consolidation  Act,  it  has 
now  been  placed  in  the  preamble  of  this  section. 

In  Rosenthal  v.  Grouse,  12  Daly,  529;  s.  c,  7  Civ.  Code  Rep.  135,  and 
1  How.  (N.  S.)  44,  the  court  severely  but  justly  criticised  the  Legisla- 
ture for  enacting  conflicting  provisions  relating  to  orders  of  arrest  and 
warrants  of  attachment  in  this  court  causing  a  justice  thereof  to  err  in 
upholding  a  provisional  remedy,  as  there  was  a  casus  omissus  in  the 
law.  This  case  is  well  worth  the  attention  of  the  student  and  of  the 
practitioner  to  show  how  "  fearfully  and  wonderfully  "  laws  are  some- 
times enacted.     See  also  notes  to  §  75. 

Notes  to  section  56,  subdivision  1. 

Arrest  is  to  punish  for  the  tort. —  Arrest  is  allowed,  not  as  a  security 
for  the  debt,  but  as  punishment  for  tort.  Nat.  Bank  of  Commonwealth 
v.  Temple,  39  How.  Pr.  432. 

Id.;  is  a  provisional  remedy  and  does  not  affect  cause  of  action. — 
The  order  of  arrest  is  a  provisional  remedy,  and  its  granting  or  vacat- 
ing does  not  affect  the  plaintiff's  cause  of  action  and  right  to  judgment 
thereon.     In  re  Zeitz,   12   Civ.  Proc.   Rep.  423. 

Id.;  of  female. —  A  willful  injury  for  which  a  female  may  be  arrested 
is  defined  in  Duncan  v.  Shaio,  6  Hun,  1,  as  "Any  disturbance 
of  the  right  of  the  owner  to  an  article,  to  have,  use,  and  enjoy  it, 
securely  and  without  molestation,  is  an  injury  for  which  the  law  gives 
an  action,  irrespective  of  any  damage  to  the  thing  itself,  in  which  the 
right  of  property  exists.  Persuading  and  inducing  a  clerk  of  plaintiff 
to  take  from  them  and  to  give  defendant,  a  female,  gold  certificates, 
which  she  willfully  converted,  is  such  willful  injury,  and  she  is  liable 

11 


162  Order  of  Arrest.  §  56. 

to  arrest."  See  also  Northern  B.  R.  Co.  v.  Carpenter,  3  Abb.  Pr.  259; 
s.  c,  3  How.  222,  1  Hilt.  179. 

Borrowed  money  by  falsely  representing  that  worthless  bonds  deliv- 
ered as  security  are  good,  subjects  a  female  to  arrest.  Eypart  v.  Bo- 
lenius,  -1  Abb.  N.  C.  193. 

Arrest,  order  of;  where  may  be  served. —  Section  9  of  this  act  au- 
thorizes the  process  of  this  court  and  other  mandates  to  be  sent  to 
and  executed  in  any  part  of  the  city  of  New  York,  and  the  court  has 
power   to   enforce   obedience   thereto. 

Cause  of  arrest  must  be  applicable  to  all  the  claims  in  the  complaint. 
Basset t  v.  Pitts,  15  Hun,  464;  Madge  v.  Ping,  71  N.  Y.  608,  revg.  s.  c, 
12  Hun,  15;  Ely  v.  Steiger,  9  Abb.  Pr.  N.  S.  35;  Toffey  v.  Williams, 
5  Sup.  Ct.   (T.  &  C.)   294. 

Conditional  sale  agreement. —  No  order  of  arrest  shall  issue  in  an 
action  on  such  agreement.  See  §  139_  of  this  act.  But  if  the  property 
is  willfully  or  maliciously  disposed  of  or  concealed,  an  order  of  arrest 
may  be  granted.     See  §   140  of  this  act. 

Judgment. —  An  order  of  arrest  may  be  granted  in  an  action  on  a 
judgment  for  a  debt  fraudulently  contracted.  The  fraud  is  not  merged 
in  the  judgment.     Greenbaum  v.  Stein,  2   Daly,  223. 

Mechanic's  lien. —  An  order  of  arrest  for  fraudulently  contracting  the 
debt  may  be  granted  in  an  action  to  enforce  a  mechanic's  lien.  Bur- 
bridge  v.  Hart,  54  How.  455. 

New  contract;  effect  of. — Acceptance  by  the  creditors  of  bonds,  merely 
as  security  for  the  demand,  and  which  are  inadequate  security,  does 
not  preclude  arrest.  Dubois  v.  Thompson,  1  Daly,  309;  s.  c,  28  How- 
Pr.  418.  See  also  Murphy  v.  Hernandez,  10  Bosw.  665;  Nelson  v. 
Blanchard,   54   Barb.   630. 

The  fact  that  a  creditor  has  accepted  the  promissory  note  of  his 
debtor  for  money  due  him,  received  in  a  fiduciary  capacity,  is  no  bar, 
after  the  dishonor  of  the  note,  to  an  arrest  in  an  action  on  the  original 
indebtedness.  But  the  plaintiff  must  be  ready  to  return  the  note, 
Shipman  v.  Shafer,  14  Abb.  Pr.  449.  But  see  also  to  the  contrary, 
Nelson  v.  Blanchfield,  54  Barb.  630,  and  Trunninger  v.  Busch,  7  Daly, 
124. 

Partners  cannot  arrest  each  other.  Cory  v.  Williams,  1  Duer,  667; 
Smith  v.  Small,  54  Barb.  223. 

Place. —  Arrest  may  be  ordered  of  a  defendant  within  the  jurisdiction 
without  reference  to  where  the  fraud  was  committed,  or  whether  the 
property  was  ever  brought  here.     Broicn  v.  Ashbough,  40  How.  Pr.  226. 

A  defendant  may  be  arrested,  in  a  civil  action,  for  fraudulently  pro- 
curing possession  of  property  in  a  foreign  country,  if  he  brings  the 
proceeds  of  his  fraud  into  this  State;  and  this,  whether  he  could  have 
been  arrested  there  for  fraud  or  not.  The  remedy  is  governed  by  the 
lex  fori.  2  Johns.  148,  11  Johns.  194,  14  Johns.  364;  City  Bank  v. 
Lumley,  28  How.  Pr.  397. 


§  56,  Stjbd.  2.  Order  of  Arrest.  163 

2.  In  an  action  for  a  fine  or  penalty,  or  for  money  or 
property  embezzled  or  wrongfully  misapplied  or  converted 
to  his  own  use  by  a  public  officer,  or  an  officer  of  a  corpora- 
tion, or  an  attorney,  factor,  broker,  agent  or  clerk,  in  the 
course  of  his  employment  as  such,  or  by  any  other  person 
acting  in  a  fiduciary  capacity. 

Notes  to  section  56,  subdivision  2. 

Auctioneer  receiving  goods  for  sale,  and  to  retain  all  over  a  certain 
amount,  failing  to  pay  that  amount,  is  liable  to  arrest.  Holbroolc  v. 
Homner,  1  Code  Rep.  N.  S.  406;  s.  c,  6  How.  Pr.  86;  Barrett  v.  Grade, 
31  Barb.  20. 

Broker  for  the  purchase  of  coin  and  stock,  receiving  a  deposit  of 
money  as  security  against  loss  in  such  transaction,  is  liable  to  an  arrest 
in  an  action  for  the  balance  of  account,  as  for  money  received  in  a 
fiduciary  capacity.     Clark  v.  Pinkney,  50  Barb.  226. 

A  stock  broker,  who,  having  received  money  to  make  a  special  pur- 
chase, and  used  it  for  some  other  purpose,  was  arrested  and  held. 
Dubois  v.  Thompson,  1  Daly,  309;  s.  c,  25  How.  Pr.  417. 

Claim  by  third  person,  interposed  to  moneys  which  the  defendant  had 
received  in  a  fiduciary  capacity  for  the  plaintiff,  wherefore  he  refused 
to  pay  it  over,  lest  he  should  be  liable,  does  not  affect  the  plaintiff's 
right  to  have  defendant  arrested  in  an  action  to  recover  such  money. 
Gross  v.  Graves,  19  Abb.  Pr.  95. 

Factors  and  commission  merchants. —  A  commission  merchant  who 
receives  butter  to  sell  on  commission  acts  in  a  fiduciary  capacity  and 
is  liable  to  arrest  for  failure  to  pay  over  the  net  proceeds  after  said 
sale.     Schudder  v.  Shiells,  17  How.  420;  Ostell  v.  Brough,  24  How.  274. 

An  agreement,  by  the  terms  of  which  a  person  receives  from  time 
to  time  the  goods  of  merchants  which  he  is  authorized  to  sell  for  their 
account  to  customers  of  his  own  finding,  upon  a  compensation  to  him 
of  a  percentage  of  the  profits  upon  his  sales,  with  authority  to  him  to 
collect  and  with  a  subsequent  accountability  for  the  proceeds  collected, 
creates  a  fiduciary  relation.  The  failure  of  the  agent  to  account  for 
the  proceeds  of  his  sales  makes  him  liable  to  his  principals,  in  an 
action  upon  contract,  but  does  not  render  him  guilty  of  a  conversion. 
Wright  v.  Duflie,  23  Misc.  Rep.  339.  See  also  Standard  S.  P.  v.  Dayton, 
70  N.  Y.  486.  Examine  however  Duguid  v.  Edwards,  23  How.  Pr  254; 
s.  c,  50  Barb.  288,  and  Fuentes  v.  Muyorga,  7  Daly,   103. 

The  relation  of  the  parties  in  this  respect  is  not  substantially  altered 
by  the  fact  that  he  has  also  guaranteed  the  Lales  made  by  him,  receiving 
an  additional  compensation  therefor.  Ostell  v.  Brough,  24  How.  Pr. 
274;  Angus  v.  Dunscomb,  8  How.  Pr.  14;  Sutton  v.  De  Camp,  4  Abb. 
Pr.  N.  S.  483. 


164:  Oedek  of  Arrest.  §  56,  Subd.  3. 

Agreement  by  which  a  factor  engaged  to  transfer  notes  and  bills 
taken  by  him  on  the  sale  of  goods,  to  the  defendants,  in  consideration 
of  their  guaranteeing  payment  to  the  principal.  Held,  that  such  notes, 
and  their  proceeds  in  the  hands  of  the  defendants,  were  received  in 
the  fiduciary  capacity  for  account  of  the  principal,  and  might  be  fol- 
lowed in  the  hands  of  any  person  not  a  purchaser  for  value.  Chaine 
v.   Coffin,   17  Abb.  Pr    441. 

If  a  factor  mingles  the  proceeds  of  the  sale  of  his  consignor's  prop- 
erty with  his  own  funds,  by  depositing  them  in  the  bank  to  his  credit 
in  general  account  and  uses  the  money  in  his  business  generally,  he  is 
liable  to  arrest  on  failure  to  pay  the  same  on  demand.  Duyuid  v. 
Edwards,  50  Barb.  288.  And  see  Farmers,  etc.,  Bank  of  Buffalo  v. 
Sprague,  52  N.  Y.  605. 

It  must  appear  that  the  identical  money  received  must  be  the  prop- 
erty of  the  creditor,  which  it  is  the  duty  of  the  debtor  to  pay  over,  not 
that  he  could  pay  with  any  funds  of  his  own.  State  v.  King,  8  How. 
Pr.  298 ;  Republic  of  Mexico  v.  Arangoiz,  5  Duer,  634 ;  Duguid  v.  Ed- 
wards, 50  Barb.  288;  Wood  v.  Henry,  40  N.  Y.  124;  Lewis  v.  Prosser, 
53  N.  Y.  260.  And  see  1  Wait's  Pr.  612,  622;  M orange  v.  Waldron,  6 
Hun,  529. 

3.  Where  the  defendant  has  been  guilty  of  a  fraud  in 
contracting  the  debt,  or  incurring  the  obligation  for  which 
the  action  is  brought,  or  in  concealing  or  disposing  of  the 
property,  for  the  taking,  detention,  or  conversion  of  which 
the  action  is  brought. 

Notes  to  section  56,  subdivision  3. 

Action  before  time  of  credit  expires. —  If  a  sale  of  goods  on  credit  be 
induced  by  fraudulent  representations,  suit  for  the  A'alue  may  be  com- 
menced before  the  termination  of  the  credit.  Reid  v.  Martin,  4  Hun, 
590. 

Assignment  of  claim. —  The  defendant  having  fraudulently  obtained 
money  and  other  personal  property  from  the  mother  of  plaintiff,  who 
afterward  died  intestate,  and  the  administrator  having  assigned  the 
intestate's  claim  to  plaintiff, — Held,  that  an  order  of  arrest  was  prop- 
erly granted.  Valentine  v.  Richardt,  17  Civ.  Proc.  Rep.  289,  24  N.  Y. 
St.  Rep..  697. 

Plaintiff's  ownership  of  a  note  assigned  to  him  by  the  payee  is  suffi- 
cient to  sustain  an  action  for  fraud  in  incurring  the  debt,  without 
showing  any  assignment  of  the  claim  for  damages  to  him.  Ryle  v. 
Brown,  50  N.  Y.  Super.  174. 

Availing  of  false  credit. —  If  a  deposit  in  bank  by  one  person,  which 
by  mistake  of  the  bookkeeper  is  credited  to  another,  is  drawn  out  and 


§  56,  Subd.  3.     Order  of  Arrest.  165 

appropriated  by  the  latter  with  knowledge  of  the  mistake,  it  is  fraud 
for  which  he  may  be  arrested.  Nat.  Broadway  Bank  v.  Miller,  11  N.  Y. 
Daily  Reg.  No.  119,  affg.  4  Week.  Dig.  31. 

Bailment  and  conversion. —  Goods  delivered  upon  an  agreement  to 
return  them  or  pay  for  them  may  be  regarded  as  a  bailment,  and  not 
a  sale,  and  the  bailee  is  liable  to  arrest  for  a  conversion.  Person  v. 
Oliver,  29  How.  Pr.  432,  revg.  s.  c,  28  How  Pr.  139.  See  also  Barnett 
v.  Selling,  9  Hun,  236. 

Arrest;  boarding-house-keeper's  lien. —  An  action  claiming  a  lien  on 
defendant's  baggage  and  wardrobe  for  board,  which  property  had  been 
clandestinely  removed,  is  an  action  for  the  "  wrongful  conversion  of 
personal  property,"  for  which  a  justice  is  allowed  to  issue  an  order 
for  the  arrest  of  defendant,  and  the  justice  erred  in  refusing  to  insert 
in  a  judgment  for  plaintiff  the  liability  of  defendant  to  arrest  on  exe- 
cution. Babcock  v.  Smith,  19  N.  Y.  Supp.  817.  See  also  Scaring  v. 
Goldstein,  11  Daly,  236. 

Chattels. —  In  an  action  for  the  recovery  of,  wrongfully  detained,  an 
order  of  arrest  may  issue  and  require  the  holding  of  the  defendant  to 
bail.     Tracy  v.  Griffin,  50  Barb.  70. 

In  order  to  sustain  an  arrest  of  defendant  in  replevin,  the  complaint 
must  allege  that  the  chattel  or  a  part  thereof  has  been  concealed,  re- 
moved, or  disposed  of,  so  that  it  cannot  be  found  or  taken  by  the  sheriff 
with  intent,  etc.,  as  provided  in  Code  Civ.  Proc,  §  549,  which  require- 
ment is  jurisdictional,  and  it  is  not  enough  that  if  the  action  had  been 
conversion  the  order  of  arrest  would  be  justified.  Michaelis  v.  Towne, 
59  N.  Y.  Supp.  721. 

Check  sent  by  mistake. —  In  an  action  for  injury  to  and  for  the  de- 
tention and  conversion  of  personal  property,  the  plaintiff  sent  the  de- 
fendant a  check  for  goods  for  which  he  had  already  paid,  and  the 
defendant,  knowing  the  mistake,  retained  and  converted  it.  Held,  order 
of  arrest  properly  granted.     Agar  v.  Haines,  15  N.  Y.  St.  Rep.  361. 

Conversion  of  check. —  Where  plaintiff  deposited  a  check  of  a  third 
party  with  defendant,  for  collection  only,  and  the  proceeds  were  to  be 
applied  to  a  special  purpose,  instead  of  appropriating  it  to  the  use  for 
which  it  was  deposited,  he  gave  him  credit  for  the  amount  with  interest. 
An  order  of  arrest  for  the  conversion  of  the  proceeds  of  the  check  was 
proper.     Eckert  v.  Belden,   1  Law  Bull.  61. 

Conversion  of  money  to  pay  note.—  A  check  was  given  to  pay  a  note, 
the  check  was  paid,  but  the  note  not  taken  up  by  defendant,  for  which 
he  was  held  liable  for  a  fraudulent  conversion  of  money  received  in  a 
fiduciary  capacity.  Wandell  v.  Burnett,  22  Misc.  Rep.  315,  49  N.  Y. 
Supp.   109.     See  also  Loicell  v.   Martin,   11   Abb.   126. 

Conversion  of  promissory  note. —  An  order  of  arrest  may  be  granted 
against  one  who  has  used  a  promissory  note  of  the  plaintiff  given  for  a 
specific  purpose  contrary  to  the  agreement,  and  does  not  deliver  it  up 


166  Obdeb  of  Aeeest.     §  56,  Sued.  3. 

when  the  agreement  has  been  complied  with.     Ertell  v.  De  Peimevet,  14 
Civ.  Proc.  Rep.  300.    And  see  Eastern  v.  Cardwell,  11  Civ.  Proc.  Rep.  301. 

Fraud  committed  in  contracting  a  debt  for  the  sale  of  goods  subjects 
the  offender  to  an  arrest  for  the  amount  of  the  debt,  whether  such 
fraud  would  avoid  the  sale  or  not.     Wallace  v.  Murphy,  22  How.  Pr.  414. 

So  where  a  vendee  purchases  property  on  credit,  knowing  that  he  is 
insolvent,  without  disclosing  the  fact.      II  right  v.  Brown,  07  X.  Y.  1. 

Defendant  borrowed  money  on  a  promise  to  apply  it  to  a  specific 
purpose,  and  converted  it  to  another.  Held,  that  he  was  liable  to  arrest 
for  a  fraud  in  contracting  the  debt.     Lovell  v.  Martin,  11  Abb.  Pr.  120. 

Applies  only  to  actions  brought  to  enforce  a  contract  liability,  and 
not  to  those  where  fraud  or  deceit  is  the  gist  of  the  action.  McGovern 
v.  Payne,  32  Barb.  83;  Smith  v.  Cobriere,  3  Bosw.  034. 

What  is  necessary  to  constitute  a  fraudulent  sale.  See  Hoyt  v. 
Godfrey,  88  X.  Y.  609. 

Contemporaneous. —  A  direct  misrepresentation  to  plaintiff  having 
been  proved,  it  is  competent  to  prove  similar  fraudulent  misrepresenta- 
tion to  others  as  bearing  upon  the  question  of  intent,  but  the  latter 
was  not  alone  sufficient,  though  communicated  to  plaintiff,  unless  it  is 
shown  they  were  intended  to  be  so  communicated.  Van  Kleek  v.  Leroy, 
4  Abb.  X.  S.  431,  4  Abb.  Ct.  App.  Dec.  479,  affg.  37  Barb.  544. 

Where  the  question  is  whether  the  vendee  procured  the  sale  of  the 
goods  through  fraud,  evidence,  is  admissible  of  purchases  made  by  him 
at  or  about  the  same  time,  involving  similar  frauds.  Hall  v.  Xaylor, 
18  X.  Y.  588,  revg.  0  Duer,  71;   Van  Kleek  v.  Leroy,  4  Abb.  X.  S.  431. 

Partner,  fraud  by. —  In  the  absence  of  proof  that  the  other  partners 
knew  of  the  fraud,  only  the  one  who  wras  actually  guilty  of  it  can  be 
arrested.  Hanover  Co.  v.  Sheldon,  9  Abb.  240;  Hitchcock  v.  Peterson, 
14  Hun,  389;  Wetmore  v.  Earle,  9  Abb.  58,  n. ;  National  Bank  of  C.  v. 
Temple,  39  How.  Pr.  432. 

False  representations  as  to  the  responsibility  of  a  firm,  made  with 
intent  to  defraud,  are  good  grounds  for  the  arrest  of  the  partner  mak- 
ing them.      Whit  mark  v.  Herman,  44  X.  Y.  Super.   144. 

Where  a  partner,  on  being  notified  of  a  fraud  committed  by  his  co- 
partner, omits  to  repudiate  the  act,  he  will  be  held  to  have  adopted 
the  fraudulent  act,  and  will  be  deemed  a  joint  wrongdoer.  Haiokins  v. 
Appleby,  2  Sandf.  241.     And  see  Anonymous,  6  Abb.  319,  n. 

See,  however,  the  cases  holding:  In  an  action  to  recover  a  copartner- 
ship debt,  in  the  contracting  of  which  some  of  the  partners  wTere  guilty 
of  a  fraud,  all  the  parties  are  liable  to  an  arrest.  Toumsend  v.  Bogart, 
11  Abb.  Pr.  355,  1  Hill,  311,  2  Sandf.  421;  Coman  v.  Reese,  21  How. 
Pr.  114;  Bull  v.  Meliss,  9  Abb.  Pr.  58;  Anonymous,  6  Abb.  Pr.  319; 
Sherman  v.  Smith,  42  How.  Pr.  198;  Hitchcock  v.  Peterson,  14  Hun,  389. 

Each  partner  is  liable  to  arrest  for  the  frauds  committed  by  the 
other  members  of  the  firm,  although  he  may  have  been  entirely  igno- 
rant of  such  frauds.     Matter  of  Benson,   11  Week.  Dig.  394. 


§  56,  Subd.  3.     Order  of  Arrest.  167 

Purchases  on  the  eve  of  bankruptcy. —  A  defendant  purchased  goods 
on  a  credit  of  thirty  days,  and  within  that  time  became  insolvent, 
giving  no  explanation.  Held  liable  to  arrest.  Dale  v.  Jacobs,  10  Abb. 
N.  S.  382;  Reid  v.   Martin,  4  Hun,  590. 

An  attempt  to  postpone  payment  for  a  week,  and  failing  within  two 
days  thereafter, —  Held  to  be  conclusive  evidence  of  intent  to  defraud. 
Smith  v.  Frank,  2  Robt.  626. 

Liable  where  debt  incurred;  and  credit  obtained  on  a  false  allegation 
cf  solvency.  Freeman  v.  Leland,  2  Abb.  Pr.  479;  Mitchell  v.  Warden, 
20   Barb.  253. 

Infant. —  An  infant  who  makes  false  statements  as  to  his  property 
when  buying  goods  other  than  necessaries  cannot  be  made  liable  to 
arrest  by  bringing  the  action  in  fraud.  Taylor  v.  Van  Keuren,  54 
How.  25.     And  see  Stem  v.  Meikleham,  31  N.  Y.  St.  Rep.  608. 

Joint  debtors. —  A  deceit  practiced  by  one  of  two  joint  debtors  in  in- 
ducing the  creditor  to  accept  his  check,  postdated  and  indorsed  by  the 
other,  is  not  ground  for  authorizing  his  arrest  in  an  action  on  the 
check  against  both.     Woodruff  v.   Valentine,  19  Abb.  93. 

Misrepresentations. —  Where  a  person,  to  induce  another  to  contract 
with  him,  makes  statements  which  he  knows  to  be  false,  or  if  he  intends 
to  convey  the  impression  that  he  has  actual  knowledge  of  their  truth, 
when  he  has  not  such  knowledge,  and  they  are  in  fact  false,  he  commits 
a  fraud.  Bishop  v.  Davis,  9  Hun,  342.  And  see  Scudder  v.  Barnes,  16 
How.  534;  Hubbard  v.  Richardson,  31  App.  Div.  520,  52  N.  Y.  Supp. 
35. 

"  Obligation,"  used  in  this  section,  is  not  used  in  its  strict  sense  of  a 
special  contract.  It  is  equivalent  to  the  words  "  legal  liability  "  or 
"  legal  duty."     Crandall  v.  Bryan,  5  Abb.  Pr.  162. 

Principal  and  agent. —  The  principal  cannot  be  arrested  for  the  fraud 
of  the  agent,  without  personal  knowledge  on  his  part  in  respect  thereto, 
or  ratification  thereof.  Clafiin  v.  Frank,  8  Abb.  Pr.  412;  Hathaway  v. 
Johnson,  55  N.  Y.  93 ;   Stewart  v.  Stoisburger,  7  Hun,  337. 

Scienter. —  It  must  be  shown  that  the  defendant  knew,  at  the  time 
of  making  them,  that  the  allegations  were  false;  otherwise  he  is  not 
liable  to  arrest.  Gafney  v.  Burton,  12  How.  Pr.  516,  18  N.  Y.  299,  40 
N.  Y.  562. 

Where  a  person,  to  induce  another  to  contract  with  him,  makes 
statements  known  by  the  former  to  be  false,  or  where  he  intends  to 
«onvey  ,  the  impression  that  he  has  actual  knowledge  of  their  truth, 
when  conscious  that  he  has  not  such  knowledge,  and  they  are  in  fact 
false,  he  thereby  commits  a  fraud  upon  the  other  party. 

When  such  representations  are  affirmative  in  character,  positive  and 
unequivocal,  without  condition  or  qualification,  and  are  not  made  upon 
information  or  belief,  or  as  matter  of  opinion,  they  must  be  regarded 
as  designed  to  convey  the  impression  that  he  had  actual  knowledge  of 
their  truth.     Bishop  v.  Davis,  9  Hun,  342. 


168  Order  of  Arrest.      §  56,  Subd.  4. 

Suspicious  circumstances  of  fraud,  unexplained,  held  sufficient  to  sus- 
tain an  order  of  arrest.     Wilmerding  v.  Cohen,  8  Abb.  Pr.  N.  S.  141. 

Waiver  of  the  fraud. —  Although  a  debt  was  fraudulently  contracted, 
yet  if,  subsequently  thereto,  plaintiff,  with  full  knowledge  of  the  fraud, 
settles  the  original  debt  and  enters  into  a  new  contract  upon  addi- 
tional consideration,  defendant  cannot  be  held  to  bail  msrely  because 
the  original  debt  was  fraudulently  contracted.  Merchants'  Bank  of 
Neio  Haven  v.  Dwight,  13  How.  366,  6  Duer,  659;  Nelson  v.  Blanch- 
field,  54  Barb.  630. 

In  an  action  on  a  promissory  note  which  became  payable  more  than 
six  years  before  the  commencement  of  the  action,  but  had  been  taken 
out  of  the  statute  of  limitations  by  payments, —  Held,  that  the  plaintiff 
could  not  have  an  order  of  arrest  for  fraud  in  contracting  the  debt,  as 
the  payments  kept  alive  the  note  only,  not  the  fraud.  Fritts  v.  Slade, 
9  Hun,  145. 

When  an  agent  is  liable  to  his  principal  in  a  fiduciary  capacity, 
settles  with  him  and  gives  his  check  and  acceptance  payable  in  the 
future,  the  character  of  his  liability  is  changed  from  a  wrong  into  a 
debt.    Alliance  Ins.  Co.  v.  Cleveland,  14  Haw.  408. 

But  the  fact  that  the  creditor  has  accepted  the  note  of  his  debtor  for 
money  received  in  a  fiduciary  capacity  is  no  bar  to  an  action  on  the 
original  indebtedness  upon  the  notes  being  returned,  Shipman  v. 
Shafer,  14  Abb.  449. 

4.  When  the  defendant  has  removed,  concealed,  or  dis- 
posed of  his  property,  or  is  about  to  do  so,  with  the  intent 
to  defraud  his  creditors. 

Notes  to  section  56,  subdivision  4. 

Concealing  or  removing  property. —  It  must  be  shown  that  the  re- 
moval or  concealment  was  with  intent  that  it  should  not  be  found  or 
taken  by  the  sheriff,  or  with  the  intent  to  deprive  the  plaintiff  of  it. 
Watson  v.  McGuire,  33  How.  Pr.  87;  Gananique  v.  Du  Luc,  1  Abb.  Pr. 
N.  S.  419;  Muller  v.  Perrin,  14  Abb.  Pr.  N.  S.  95;  Bamett  v.  Selling, 
70  N.  Y.  492,  modifying  7  Hun,  236,  3  Abb.  N.  C.  83;  Nicholas  v. 
Michael,  23  N.  Y.  264. 

What  is  evidence  of  fraudulent  disposal  of  property.  See  Phillips 
v.  Benedict,  33  Barb.  655,  12  Abb.  355,  affg.  20  How.  265. 

An  attempt  to  put  the  property  beyond  the  reach  of  its  owner  will 
authorize  the  order  of  arrest.  Lippman  v.  Shapiro,  19  Week.  Dig.  504, 
50  N.  Y.  Super.  370. 

One  codefendant  admitted  to  the  plaintiff  that  they  had  transferred 
their  goods  to  another  firm  to  keep  them  out  of  the  hands  of  creditors, 
that  it  was  the  same  as  if  they  owned  the  goods ;  these  admissions  were 


§  57.  Order  of  Arrest.  169 

corroborated  by  suspicious  circumstances,  such  as  want  of  evidence  of 
a  good  consideration  for  the  transfer,  the  creation  of  a  new  firm  to  take 
the  goods,  the  absence  of  any  transfer  of  the  premises  in  which  the 
goods  were  situated,  and  the  fact  of  their  remaining  on  the  same  prem- 
ises; an  order  of  arrest  on  the  ground  of  a  fraudulent  disposition  of 
property  was  sustained.  Phillips  v.  Benedict,  33  Barb.  355,  s.  c,  12 
Abb.  Pr.  355,  20  How.  Pr.  265. 

5.  When  an  arrest  is  authorized  by  special  statute,  in  an 
action  for  a  fine  or  penalty,  or  for  a  wilful  violation  of  duty. 

6.  When  the  action  is  for  the  recovery  of  a  fine  or  pen- 
alty under  the  ordinances  or  by-laws  of  the  city  of  New 
York. 

§  57.  Affidavit  and  undertaking  upon  granting. —  Before  an 
order  of  arrest  shall  issue,  the  party  applying  must  prove 
to  the  satisfaction  of  the  court,  by  the  affidavit  of  himself 
or  some  other  person,  the  facts  on  which  the  application  is 
founded,  and  the  amount  of  his  debt  or  claim  over  all  pay- 
ments and  set-offs.  The  plaintiff  must  also  execute  and 
deliver  to  the  clerk  of  the  court,  in  the  district  in  which 
the  action  is  brought,  a  written  undertaking  approved  by 
the  court,  with  such  approval  endorsed  thereon,  with  suffi- 
cient surety  or  sureties,  to  the  effect  that  if  the  defendant 
recover  judgment  the  plaintiff  will  pay  to  him  all  costs  and 
extra  costs  that  may  be  awarded  to  the  defendant,  and  all 
damages  which  he  may  sustain  by  reason  of  the  arrest  not 
exceeding  the  sum  specified  in  the  undertaking,  which  must 
be  double  the  amount  claimed.  But  the  proof  and  security 
required  by  this  section  shall  not  be  necessary  where  the 
order  of  arrest  is  issued  for  the  violation  of  a  by-law  or 
ordinance  of  the  city  of  New  York,  or  for  the  recovery 
of  a  penalty  or  a  forfeiture  under  the  statutes  of  this  state, 
where  the  city  of  New  York  or  any  department  of  the  gov- 
ernment of  said  city  authorized  by  statute  to  maintain  an 
action,  or  of  the  people  of  the  state  of  New  York  are 
plaintiffs. 

Notes  to  section  57. 
This  section  is  substantially  the  same  as   section   1305   of  the  Con- 
solidation Act    (Laws   1882,  chap.   410),  which   was  taken   from  Laws 


170  Okder  of  Arrest.  §  57. 

1857,  chap.  344,  §  21,  leaving  out  the  provision  that  an  undertaking 
could  be  given  without  sureties.  The  party  applying  must  now  in  all 
cases  furnish  a  surety  or  sureties  before  an  order  of  arrest  is  granted, 
except  in  the  action  to  recover  a  penalty  or  forfeiture  as  specified  at 
the  close  of  this  section.  The  form  of  the  undertaking  is  different 
from  that  prescribed  by  section  812  of  the  Code  of  Civil  Procedure, 
although  that  section  applies  to  this  court  by  section  3347,  subdivision 
6  of  said  Code. 

Affidavit;  what  it  must  state. —  The  affidavit  must  be  positive.  Some 
of  the  material  statements  in  the  affidavits  may  be  upon  information 
and  belief,  but  they  must  set  forth  the  sources  of  the  information  and 
the  grounds  of  the  belief,  the  residence  of  the  informants  and  reasons 
why  their  affidavits  could  not  be  obtained.  Jordon  v.  Harrison,  13 
Civ.  Proc.  Rep.  445.  See  also  Whitbeck  v.  Roth,  5  How.  Pr.  143;  Blason 
v.  Bruno,  33  Barb.  520;  De  Weerth  v.  Feldner,  16  Abb.  Pr.  295; 
DeXierth  v.  Lidner,  25  How.  Pr.  419;  City  Bank  v.  Lumley,  28  How. 
Pr.  397;  Potter  v.  Sullivan,  16  Abb.  Pr.  298;  Grimes  v.  Davison,  2 
Abb.  X.  C.  457 ;  Phelps  v.  Maxwell,  2  Abb.  N.  C.  459. 

In  an  action  of  replevin  the  affidavit  stated  that  the  defendant  had 
concealed,  removed,  or  disposed  of  the  goods  with  intent  to  deprive 
the  plaintiff  of  the  benefit  thereof,  but  the  affidavit  did  not  state  that 
this  had  been  done  so  the  chattels  "  cannot  be  found  or  taken  by  the 
sheriff,  and  with  intent  that,  they  should  not  be  found  or  taken,"  etc. 
Held,  that  the  order  of  arrest  was  improper.  Hough  v.  Folinsbee,  36 
X.  Y.  St.  Rep.  708,  59  Hun,  148,  20  Civ.  Proc.  Rep.  Ill,  12  N.  Y.  Supp. 
309.   13  N.  Y.  Supp.  221;  Markey  v.  Diamond,  1  Misc.  Rep.  97. 

The  intent  must  appear.     Muller  v.  Perrin,   14  Abb.  Pr.  N.  S.  95. 

Amendment  of  undertaking. —  See  notes  to  §  3  ("Removal"). 

Complaint,  when  verified,  is  available  as  an  affidavit,  with  others  to 
sustain  the  order.     Palmer  v.  Hussey,  59  N.  Y.  647,  affg.  65  Barb.  278. 
.  Conversion     of    property. —  What    evidence    sufficient    to     establish. 
Woodbridge  v.  Nelson,  13  Hun,  390. 

Fraud. —  Proof  of  an  actual  fraudulent  intent  is  required.  Pacific 
Mutual  Ins.  Co.  v.  Machado,  16  Abb.  Pr.  451.  And  when  it  appears, 
a  mere  denial  of  any  fraudulent  intention  will  be  disregarded.  City 
Bank  v.  Lumley.  28  How.  Pr.  397. 

Intent  must  be  inferred  from  acts  and  declarations.  'Whitcomb  v. 
Salsman,  12  How.  Pr.  533. 

A  purchaser  who  obtains  credit  by  false  representations  must  be  held 
to  intend  the  legitimate  consequences  of  his  acts.  Whitcomb  v.  Sals- 
man,  16  How.  Pr.  533 ;  Smith  v.  Frank,  2  Robt.  626. 

Concealment  of  banl  rupt  condition.  Representation.  Roebling  v. 
Duncan,  8  Hun,  502.  The  particular  representations  as  to  fraud,  and 
in  what  respect  they  were  false,  must  be  stated.  Draper  v.  Beers,  17 
Abb.  Pr.  163;   Thorpe  v.  Waddingham,  3  Daly,  275. 


§§  58,  59.  Order  of  Arrest.  171 

Making  a  note;  before  maturity,  a  fire,  obtaining  the  insurance,  sud- 
denly and  secretly  abandoning  residence  without  notice,  and  removing 
to  another  State,  unexplained.     M alien  v.  Aznar,  11  Abb.  Pr.  N.  S.  223. 

Exception  to,  and  justification  of,  sureties. —  By  section  70  of  this  act 
sections  100  to  110  and  sections  127  and  128  are  made  applicable  to 
undertakings,  sureties,  and  justification. 

Goods  on  credit. —  The  facts  to  be  disclosed,  and  an  ample  form  to 
obtain  an  order  of  arrest  for  obtaining  goods  upon  credit  by  false 
and  fraudulent  representation,  can  be  found  in  Wilmerding  v.  Cohen, 
8  Abb.  Pr.  N.  S.  141.     See  also  Reid  v.  Martin,  4  Hun,  590. 

Mistakes,  omissions,  defects,  and  irregularities,  and  general  rules  re- 
specting affidavits,  bonds,  and  undertakings. —  See  notes  to  §  1,  subd.  3. 

Set-off. —  An  affidavit  stating  that  plaintiff  was  entitled  to  recover  of 
defendant  a  certain  sum  "  over  and  above  all  discounts  and  set-offs," 
held  sufficient.     Lampkiri  v.  Douglas,  15  Week.  Dig.  314. 

§  58.  What  to  direct. —  An  order  of  arrest,  must  direct 
that  the  summons  accompanying  it  be  made  returnable  im- 
mediately upon  the  arrest  of  the  defendant,  and  it  must 
specify  a  sum  in  which  the  defendant  may  be  let  to  bail. 

Notes  to  section  58. 

This  section  is  the  same  as  section  1307  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  which  was  taken  from  section  3218  of  the 
Code  of  Civil  Procedure. 

As  to  the  return  day  of  the  summons  in  other  cases,  see  §  37. 

§  59.  Papers  to  be  delivered  to  arrested  person;  proceedings 
thereupon. —  The  marshal,  upon  arresting-  the  defendant,  by 
virtue  of  such  an  order,  must  at  the  same  time,  serve  upon 
him  the  summons,  and  also  a  copy  of  the  order  of  arrest, 
and  of  the  papers  upon  which  it  was  granted.  He  must 
forthwith  bring  the  defendant  before  the  court,  in  the  dis- 
trict in  which  the  action  is  brought,  if  the  court  is  then  in 
session;  otherwise  unless  bail  is  given,  as  prescribed  in  sec- 
tion sixty-two  of  this  act,  he  must  take  the  defendant  to  the 
jail  of  the  county  in  which  the  district  where  the  action  is 
brought  is  situate,  for  the  confinement  of  prisoners  in  civil 
causes.  The  keeper  thereof  must  confine  the  defendant 
therein.  On  the  next  day  thereafter  when  said  court  is 
in  session,  the  marshal  must  take  the  defendant  from  the 
jail  and  bring  him  before  the  court. 


172  Okdeh  of  Arrest.  §§  60,  61,  62. 

Note  to  section  59. 

This  section  is  substantially  the  same  as  section  1308  of  the  Con- 
solidation Act  (Laws  1882,  chap.  410),  with  the  exception  of  the  ad- 
dition of  the  words  "  of  the  county  in  which  the  district  where  the 
action  is  brought  is  situated,"  so  as  to  make  it  consistent  with  the 
jurisdiction  of  the  court  in  the  four  counties  anu  the  five  boroughs 
of  the  city  of  New   Yo  k. 

§  60.  Proceedings  in  case  justice  is  a  witness. —  If  it  be 
made  to  appear  by  the  affidavit  of  the  defendant  to  the  satis- 
faction of  the  justice  sitting  in  the  district  in  which  the 
action  is  brought,  that  such  justice  is  a  material  witness  in 
the  action,  the  marshal  must  immediately  take  the  defend- 
ant before  the  court  in  an  adjoining  district  named  by  said 
justice,  which  must  take  cognizance  of  the  action,  and  pro- 
ceed therein  the  same  as  if  the  order  of  arrest  had  been 
issued  out  of  the  court  in  the  latter  district. 

Note  to  section  6o. 

This  section  is  substantially  the  same  as  section  1309  of  the  Con- 
solidation Act  (Laws  1882,  chap.  410),  and  was  formerly  section  17 
of  chapter  344,  Laws  1857.  The  reference  to  "  District  Courts "  in 
the  old  section  is  omitted  for  the  reason  that  there  is  only  one  court 
now,  and  the  adjoining  district  to  which  the  case  may  be  sent  is  to  be 
specified  by  the  justice  of  the  district  in  which  the  action  was  com- 
menced. 

§  61.  Plaintiff  to  be  notified  of  arrest. —  The  marshal  mak- 
ing the  arrest  must  immediately  give  notice  thereof  to  the 
plaintiff,  and  endorse  on  the  order  of  arrest,  and  subscribe 
a  certificate  stating  the  time  of  serving  the  same,  and  of  giv- 
ing notice  to  the  plaintiff. 

Note  to  section  6i. 

This  section  is  the  same  as  section  1310  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  and  was  formerly  section  18  of  chapter  344 
of  the  Laws  of  1857. 

§  62.  Bail  or  deposit  before  return. —  The  defendant  may 
give  bail,  by  delivering  to  the  marshal  a  written  undertak- 


§  63.  Order  of  Arrest.  173 

ing  to  the  plaintiff,  in  the  sum  specified  in  the  order  of 
arrest,  executed  by  one  or  more  sureties,  to  the  effect  that 
the  defendant  will  attend  in  person  at  the  opening-  of  the 
court,  on  the  next  day  thereafter  when  it  is  there  in  session, 
or  he  may  deposit  with  the  marshal  the  sum  specified  in  the 
order  of  arrest.  In  either  case  the  marshal  must  forthwith 
release  him  from  custody. 

Notes  to  section  62. 

This  section  is  the  same  as  section  1311  of  the  Consolidation  Act 
(Laws  1882.  chap.  410),  which  is  substantially  section  3180  of  the 
Code  of  Civil  Procedure  embraced  in  section  3218  of  said  Code. 

Agreement  with  sureties  for  deposit  with  trust  company. —  It  shall 
be  lawful  for  any  party  of  whom  a  bond  or  undertaking  is  required,  to 
agree  with  his  sureties  for  the  deposit  of  any  or  all  moneys  for  which 
such  sureties  are  or  may  be  held  responsible  with  a  trust  company 
authorized  by  law  to  receive  deposits,  if  such  deposit  is  otherwise 
proper,  and  for  the  safe-keeping  of  any  or  all  other  depositable  assets 
for  which  such  sureties  may  be  held  responsible,  with  a  safe  deposit 
company  authorized  by  law  to  do  business  as  such,  in  such  a  manner  as 
to  prevent  the  withdrawal  of  such  moneys  and  assets,  or  any  part 
thereof,  except  with  the  written  consent  of  such  sureties,  or  an  order 
of  the  court  made  on  such  notice  to  them,  as  it  may  direct.  Part  of 
§  813  of  the  Code  Civ.  Proe. 

§  63.  Bail  may  be  examined. — Where  bail  is  given  as  pre- 
scribed in  the  last  section,  the  officer  taking  the  acknowl- 
edgment of  the  undertaking  must,  if  the  marshal  so  requires, 
examine  under  oath,  to  a  reasonable  extent,  the  persons 
offering  to  become  bail,  concerning  their  property  and  their 
circumstances.  The  defendant  may  give  bail,  or  make  the 
deposit,  immediately  upon  his  arrest,  at  any  hour  of  the 
day  or  night;  and  he  must  have  reasonable  opportunity  to 
seek  for  and  procure,  bail,  before  being  committed  to  jail. 
"Where  a  deposit  is  made,  the  money  deposited  must,  before 
the  expiration  of  the  next  day,  thereafter,  not  being  Sun- 
day or  a  public  holiday,  be  paid  by  the  marshal  into  court, 
by  paying  the  same  directly  to  the  clerk  in  the  district  in 
which  the  action  is  brought,  which  said  deposit  shall  be 
regarded  as  an  undertaking,  and  shall  have  the  same  force 
and  effect  and  no  other. 


174  Order  of  Arrest.  §§  64,  65. 

Note  to  section  63. 

This  section  is  substantially  the  same  as  section  1312  of  the  Con- 
solidation Act  (Laws  1882,  chap.  410),  with  the  exception  that  where 
a  deposit  is  made,  the  marshal  must  pay  the  money  to  the  clerk  of 
the  court  instead  of  to  the  chamberlain.  Section  1312  was  substantially 
section  3181  of  the  Code  of  Civil  Procedure  and  was  made  applicable 
by  section  3218  of  said  Code. 

§  64.  Bail  or  deposit  after  return. —  At  any  time  after  the 
return  of  the  marshal,  and  before  final  judgment,  the  court 
may  admit  a  defendant  in  custody  to  bail,  or  allow  him  to 
make  a  deposit;  and  may  direct  his  release  upon  his  giving 
bail  or  making  the  deposit  accordingly.  The  sum  to  be  de- 
posited or  the  sum  specified  in  the  undertaking  of  the  bail, 
must  be  fixed,  and  the  sureties  in  the  undertaking  must  be 
approved  by  the  court,  which  must  be  satisfied  by  their 
examination,  or  by  other  proof,  respecting  their  sufficiency. 
The  undertaking  must  be  to  the  effect  that  the  defendant 
will  at  all  times,  render  himself  amenable  to  any  mandate 
which  may  be  issued,  to  enforce  a  final  judgment  against 
him  in  the  action. 

Notes  to  section  64. 

This  section  is  substantially  the  same  as  section  1313  of  the  Con- 
solidation Act  (Laws  1882,  chap.  410),  which  was  substantially  the 
same  as  section  3182  of  the  Code  of  Civil  Procedure  made  applicable 
by  section  3218  of  said  Code. 

Abandonment  bonds. —  The  court  has  the  same  power  as  to  requir- 
ing further  security,  or  committing  defendant  in  default  thereof,  as  is 
conferred  by  law  upon  judges  of  courts  of  record  in  similar  cases.  See 
§   178. 

§  65.  When  and  how  defendant  to   remain  in  custody. — 

Unless  bail  is  given,  or  a  deposit  is  made,  as  prescribed  in  the 
last  three  sections,  the  defendant  must  remain  in  the  jail 
by  virtue  of  the  order  of  arrest,  until  final  judgment  in  the 
action;  and  if  the  judgment  is  against  the  defendant,  until 
the  return  of  an  execution  against  property  issued  there- 
upon. But  the  court  must  direct  him  to  be  brought  into 
court,  at  the  time  of  the  trial;  and  it  may  in  its  discretion, 
direct  him  to  be  brought  into  court  at  any  other  time.     In 


§§  60,  67.  Order  of  Arrest.  175 

either  case  he  must  be  taken  from  the  jail,  and  brought  into 
court  accordingly.  Nothing  in  this  section  shall  be  so  con- 
strued as  to  prevent  a  defendant  at  any  time  after  judg- 
ment from  being  admitted  to  the  jail  liberties  in  the  man- 
ner provided  by  law,  whether  formal  execution  against  the 
person  has  issued  or  not. 

Note  to  section  65. 

This  section  is  the  same  as  section  1314  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  with  the  exception  of  the  addition  commenc- 
ing from  the  words  "  nothing  in  this  section,"  etc.,  and  is  substantially 
section  3183  of  the  Code  of  Civil  Procedure  made  applicable  by  sec- 
tion" 3218  of  said  Code. 

§  QG.  Duty  of  marshal.—  The  marshal  making  the  arrest, 
or  another  marshal,  by  direction  of  the  court,  must  keep  the 
defendant  in  custody,  unless  he  shall  give  the  security  for 
his  appearance,  or  until  he  is  duly  discharged  by  order  of 
the  court;  but  in  no  case  can  such  detention  exceed  forty- 
eight  hours,  excluding  Sundays  and  legal  holidays,  from  the 
time  of  his  first  being  brought  before  the  court,  unless 
within  that  time  the  trial  of  the  action  be  commenced,  and 
formally  proceeded  with,  and  resumed  without  any  inter- 
ruption other  than  the  necessary  recess  of  the  court. 

Note  to  section  66. 

This  section,  together  with  the  next  section,  is  taken  from  sections 
1315  and  1363  of  the  Consolidation  Act  (Laws  1882,  chap.  410),  which 
were  taken  respectively  from  Laws  1857,  chap.  344,  §§   19,  26. 

§  67.  Undertaking  by  arrested  defendant  on  applying  for 
adjournment. —  If  the  defendant  make  application  for  an 
adjournment,  or  demand  a  jury  trial  at  the  time  he  is  brought 
before  the  court,  before  it  can  be  granted,  he  must,  unless 
he  has  given  bail  or  made  a  deposit,  execute  an  undertak- 
ing, with  one  or  more  sufficient  sureties,  to  be  approved  by 
the  court,  which  approval  must  be  indorsed  on  the  under- 
taking, to  the  effect  that  he  will  appear  on  the  adjourned 
day,  and  not  depart  until  duly  discharged  according  to  law, 


176  Okdek  of  Abbest.  §  68. 

or  until  after  the  trial  and  judgment,  and  that  he  will  sur- 
render himself  into  custody  if  any  execution  be  issued  upon 
the  judgment  when  obtained  against  him  in  the  action. 

Note  to  section  67. 

See  §  193  and  notes  to  §  66. 

§  68.  Motion  to  discharge  from  arrest. —  A  defendant,  ar- 
rested as  prescribed  in  this  article,  may,  without  notice,  upon 
the  appearance  of  the  plaintiff  before  the  court,  or  at  any 
time  afterwards  before  judgment,  upon  two  days'  notice 
given  personally  to  the  plaintiff,  or  to  his  agent  or  attorney 
who  appeared  for  him  before  the  court,  apply  to  the  court  for 
an  order,  discharging  him  from  arrest.  The  application  may 
be  founded  upon  the  papers  upon  which  the  order  of  arrest 
was  granted,  and  upon  the  complaint,  if  it  has  been  made. 
The  court  must  grant  the  application,  where  it  appears  that 
the  case  is  not  within  the  provisions  of  section  fifty-six  of 
this  act.  The  court  must  also,  upon  the  defendant's  appli- 
cation, grant  an  order  discharging  him  from  arrest,  if  the 
plaintiff  fails  to  take  out  an  execution,  upon  a  judgment  in 
his  favor,  before  the  expiration  of  twenty-four  hours  after 
he  is  entitled  thereto. 

Notes  to  section  68. 

This  section  is  new  and  is  substantially  section  2901  of  the  Code 
of  Civil  Procedure,  relating  to  "Courts  of  justices  of  the  peace."  Sec- 
tion 1315  of  the  Consolidation  Act  (Laws  1882,  chap.  410),  provided 
for  the  discharge  of  the  defendant  by  order  of  the  court  in  a  general 
way. 

Belief. —  If  the  defendant  believes  his  representations  which  he  makes 
as  to  his  liability  to  pay,  before  or  at  the  time  he  purchases  goods  of 
the  plaintiff,  are  true  when  he  makes  them,  he  is  not  guilty  of  any 
fraud,  however  false  they  may  be  in  fact.  Gafney  v.  Burton,  12  How. 
Pr.  516. 

An  affidavit  is  good  although  the  applicant  swears  only  to  his  belief 
as  to  the  intent  of  fraud,  provided  he  sets  forth,  on  his  positive  oath, 
facts  and  circumstances  on  which  such  belief  is  founded.  Fullan  v. 
Heat  on,  1  Barb.  552. 

Chattels,  concealment  of. — The  intent  must  appear  by  the  facts  stated. 
Midler  v.  Perrin,  14  Abb.  Pr.  N.  S.  95. 


§  6S.  Order  of  Arrest.  177 

It  is  not  sufficient  to  show  merely  that  the  defendant  removed  it. 
The  intent  must  appear  that  it  should  not  be  found,  or  taken  by  the 
marshal,  so  as  to  deprive  plaintiff  of  it.  Watson  v.  Mcd'uirc,  33  How. 
Pr.  87;  Jouanique  v.  De  Luc,  1  Abb.  Pr.  N.  S.  419;  Muller  v.  Perrin, 
14  Abb.  Pr.  N.  S.  95. 

Christian  names  of  plaintiffs  must  be  stated  on  the  papers  on  which 
the  order  of  arrest  was  granted.  Appearance  by  defendant  waives  the 
defect.     7  Cow.  36G;  Ballowhey  V.  Cadot,  3  Abb.  Pr.  N.  S.  122. 

The  law  does  not  recognize  a  single  letter  as  a  name.  Frank  v. 
Lcvic,   5   Robt.   599,   37   Barb.  479. 

Copies  of  letters,  documents,  or  papers,  upon  which  information  and 
belief  is  founded  must  be  annexed.  De  Weerth  v.  Feldncr,  1G  Abb.  Pr. 
295;  De  Nierth  v.  Sidner,  25  How.  Pr.  419. 

Counter-affidavits. —  Where  the  affidavits  do  not  state  facts  within 
the  plaintiff's  own  knowledge,  and  which,  being  uncontradicted,  would 
establish  prima  facie  the  defendant's  guilt,  the  order  will  be  vacated 
upon  contradictory  affidavits  by  the  defendant.  Sachs  v.  Bertrand,  22 
How.  Pr.  95. 

On  being  brought  before  the  justice  he  may  read  counter-affidavits 
to  those  of  the  plaintiff  and  move  thereon  to  discharge  the  arrest. 
This  must  be  done  before  issue  joined.  Johnson  v.  Florence,  32  How. 
Pr.  230. 

The  defendant  may  elect  whether  he  Avill  informally  demur  to  the 
plaintiff's  case,  set  forth  in  the  original  affidavits,  as  insufficient  to 
warrant  the  arrest,  thus  presenting  the  naked  legal  question  on  un- 
disputed averments  of  fact,  or  whether  he  will  open  the  merits  of  the 
whole  controversy  by  moving  on  counter-affidavits,  raising  issues  of 
fact,  and  proceed  to  an  informal  trial  on  the  merits.  But  he  cannot, 
in  legal  effect,  pursue  both  methods  at  the  same  time,  by  selecting  as 
the  subject  of  denial  and  dispute  such  portions  only  of  the  plaintiff's 
case  as  he  may  deem  most  easily  disproved,  and  thus  debar  the  plain- 
tiff from  strengthening  other  portions  by  incontestable  evidence,  which 
on  the  original  proof,  perhaps,  could  hardly  be  sustained.  The  plain- 
tiff, in  such  case,  has  the  right  to  read  additional  affidavits  which 
■establish  the  fact  in  question  beyond  dispute.  Evans  v.  Holms,  46 
How.   Pr.   515. 

Counterclaim. — -In  an  action  to  recover  the  value  of  chattels  converted 
by  defendant,  it  is  not  ground  for  discharging  an  order  of  arrest  that 
the  defendant  has  a  claim  for  a  larger  amount  against  the  plaintiff. 
Hullet  v.  Reyns,  1  Abb.  Pr.  N.  S.  27. 

Default  in  answer  does  not  preclude  motion  to  vacate. —  The  pro- 
visions allowing  a  verified  complaint  to  be  served,  and  providing  that, 
unless  a  verified  answer  be  filed,  the  justice  must  render  judgment 
for  the  plaintiff  without  putting  him  to  any  proof,  does  not  deprive 
this  court  of  the  power,  upon  default  of  a  defendant  to  answer  such 

12 


178  Order  of  Arrest.  §  68. 

a  complaint,  to  adjourn  the  cause  for  the  purpose  of  hearing  a  motion 
to  vacate  an  order  of  arrest.  Adler  et  til.  v.  Keiner,  L3  Daly,  CO;  s.  c> 
21  Week.  Dig.  484,  limiting  Ahrens  v.  Burke,  63  How.  Pr.  50. 

Defective  copies  served. —  That  the  copy  of  the  affidavit  served  with 
the  order  of  arrest  does  not  purport  to  have  been  duly  signed  or  veri- 
fied is  no  ground  for  discharging  the  defendant  from  custody.  Barker 
v.  Cook,  10  Abb.  Pr.  88 ;  s.  c,  less  fully,  25  How.  Pr.  190,  and  40  Barb. 
254;  Bunk  of  Havana  v.  Moore,  5  Hun,  624. 

An  order  of  arrest  will  not  be  vacated  because  the  copies  of  the 
papers  served  did  not  contain  a  jurat  or  verification,  if  the  original 
papers  were  not  defective.     Petschaft  v.  Lubow,  27  Misc.  Rep.  50. 

Explanations. —  Where  the  defendant  has  full  opportunity  to  explain 
the  allegations  of  the  affidavits  on  which  the  order  of  arrest  was 
granted,  and  has  failed  to  do  so,  these  allegations  are  to  be  taken 
most  strongly  against  him.  Brooklyn  Daily  Union  v.  Bay  ward,  11 
Abb.  Pr.  X.   S.  235. 

Extension  of  time  of  payment  of  debt  vacates  a  prior  order  of  arrest. 
Foxell  v.  Jones,  11  Hun,  643. 

Fiduciary  capacity. —  What  is  not,  for  which  an  arrest  may  issue,  see 
Buchanan  F.  0.  Co.  v.  Woodman,  1  Hun,  639;  Morange  v.  Woodman,  6 
Hun,  529. 

Fraud.—  Plaintiff  must  show  affirmatively  fraud,  and  where  the  evi- 
dence is  equally  consistent  with  guilt  and  innocence,  the  latter  must 
prevail.     Stoiv  v.  Stacy.  30  N.  Y.  St.  Rep.  308. 

There  must  be  averments  in  the  complaint  of  facts  which  constitute 
fraud,  or  the  arrest  will  be  set  aside.  Lawrence  v.  Foxicell,  4  Civ. 
Proc.  Rep.  340. 

Fraud  merely  constructive  and  not  involving  moral  guilt  is  not 
ground  of  arrest.     Birchell  v.  Strauss,  8  Abb.  Pr.  53. 

Where  there  is  no  evidence  of  actual  fraud  in  the  debtor,  he  should 
not  be  subjected  to  arrest  for  acts  only  constructively  fraudulent.  Peo- 
ple v.  Kelly,  35  Barb.  444. 

All  the  items,  and  not  some  of  them  only,  must  be  covered  by  the 
fraud.  Toffcy  v.  Williams,  5  Sup.  Ct.  (T.  &  C.)  294;  Ely  v.  Stcigler,  9 
Abb.  Pr.  X.  S.  35. 

A  general  allegation  as  to  the  falsity  of  representations  in  an  ac- 
tion for  fraud  is  not  enough.  Particulars  of  the  representation  and 
falsity  must  be  given.  Draper  v.  Beers,  17  Abb.  Pr.  163;  Thorp  v. 
Waddingham,  3   Daly,  275. 

When  inferences  and  conclusions  are  given.  Crandall  v.  Bryan,  15 
How.  Pr.  48. 

Arrest  cannot  be  obtained  in  an  action  on  a  note  on  the  ground  that 
the  debt  for  which  the  note  was  given  was  fraudulently  incurred; 
where  the  claim  arising  from  the  fraud  was  perpetrated  over  six  years 
before  the  action  was  commenced,  the  fraud  was  barred  by  the  statute 


§  68.  Okder  of  Arrest.  179 

of  limitation,  and  payments  on  the  note  kept  alive  the  note  alone,  and 
not  the  fraud.     Fritts  v.  Slade,  9  Hun,  145. 

The  plaintiff  may  sustain  the  order  and  resist  the  motion  by  prov- 
ing other  contemporaneous  frauds  by  the  defendant.  Scott  v.  Williams, 
23  How.  Pr.  393,  14  Abb.  Pr.  70. 

Goods  stolen. —  A  written  complaint  alleged  that  certain  goods  had 
been  stolen,  and  there  was  probable  cause  to  suspect,  and  does  suspect 
that  Frank  Blodgett  stole  them,  is  insufficient.  Blodgett  v.  Race,  18 
Hun,  132. 

Identity  cf  grounds  of  order  of  arrest  with  cause  of  action. —  The 
merits  of  the  action  cannot  be  tried  on  affidavits,  though  the  defendant 
cannot  obtain  bail,  unless  it  is  clear  plaintiff  will  fail  upon  the  trial 
in  his  proofs  of  the  facts  charged.  Royal  Ins.  Co.  v.  Noble,  4  Abb. 
Pr.  N.  S.  54;  Sicift  v.  Wylie,  5  Robt.  680;  Faris  v.  Peck,  10  Abb.  Pr. 
N.  S.  55;  City  v.  Mumford,  47  Barb.  629;  Tollman  v.  Whitney,  5 
Daly,  505;  Grisicold  v.  Street,  49  How.  Pr.  171;  Hoy  v.  Duncan,  33 
N.  Y.  Super.    ( 1  J.  &  S.)555. 

The  right  to  apply  on  motion  for  a  discharge  from  arrest  is  secured 
to  all  persons  who  may  be  arrested  under  orders  in  civil  actions. 
A  defendant  may,  at  any  time  before  judgment,  secure  his  liberation 
from  arrest  and  imprisonment,  upon  proof  of  that  right,  whether  the 
fact,  out  of  which  the  liability  to  arrest  is  alleged  to  arise,  form  part 
of  the  cause  of  action  itself  or  not.    Liddell  v.  Pa  ton,  7  Hun,  195. 

Where  the  cause  of  action  set  forth  in  the  complaint  and  the  ground 
of  arrest  are  the  same,  the  controversy  should  be  left  to  an  investiga- 
tion at  a  regular  trial,  and  should  not  be  decided  upon  conflicting  affi- 
davits on  a  motion  to  vacate  the  order  of  arrest.  Welch  v.  Winterbum, 
14  Hun,  519;  Merritt  v.  Carpenter,  3  Keyes,  142. 

Motion  to  vacate. —  Although  th  cause  of  arrest  be  identical  with  the 
cause  of  action,  it  is  required,  on  a  motion  to  vaoate  the  order,  to 
examine  the  affidavits  and  decide  the  motion  upon  the  fair  prepon- 
derance of  proof.  Ar  grave  v.  Black  man,  25  Misc.  Rep.  654,  28  Civ. 
Proe.  Rep.  362. 

Vacating  order. —  An  allegation  of  fraud  in  contracting  the  debt  sued 
for  must  be  tried  as  an  issue  in  the  action,  and  an  order  of  arrest 
therein  will  not  be  vacated  on  conflicting  affidavits  in  reference  to  it. 
Rieben  v.  Francis,  29  Misc.  Rep.  670. 

A  motion  to  vacate  an  order  of  arrest,  though  the  grounds  on  which 
it  was  granted  are  identical  with  those  stated  in  the  complaint  as 
affording  a  cause  of  action,  may  be  granted,  leaving  plaintiff  to  try 
his  case  and,  if  successful,  enforce  judgment  by  body  execution.  Strom- 
berg  v.   Maister,  34  Misc.   Rep.  810. 

Identical  money. —  Complaint  alleged  defendants  were  auctioneers,  and 
as  such  "  sold  and  delivered,  for  account  of  plaintiff,  divers  pieces  of 
furniture."  that  they  "  received  for  the  account  and  benefit  of  the 
plaintiff,  in  their  capacity  of  auctioneers,  the  sum  of  $271.18,  and  there 


180  OEDEB    O]     A.KKEST.  §  68. 

remains  due  and  owing  from  defendants  to  plaintiff  the  sum  of  $210.67, 
with  interest  from  April  26,  1S72.  which  sum  hath  been  often  de- 
manded but  refused."  Held,  that  it  did  not  appear  from  the  com- 
plaint that  it  was  the  duty  of  the  defendant  to  pay  over  the  identical 
money  received,  but  simply  that  he  had  received  a  certain  sum  of 
money  on  account  of  plaintiff,  which  he  could  pay  with  any  funds, 
subject  to  his  use  and  control.  The  identical  money  must  appear  to 
be  property  of  the  creditor.  Morange  v.  Waldron,  6  Hun,  529.  See 
also  Buchanan  F.   0.  Co.  v.  Woodman,  1    Hun,  639. 

Inconsistency. —  Where  the  affidavit  is  inconsistent  with  the  complaint 
in  facts,  the  arrest  will  be  vacated.  Wicke  v.  Harmon,  21  How.  Pr. 
462;  s.  c,  12  Abb.  Pr.  476. 

Information  and  belief. —  Where  the  facts  alleged  are  stated  upon 
information  and  belief  merely,  and  the  sources  thereof  and  grounds 
of  belief  are  not  given.  Satow  v.  Reisenberger,  25  How.  Pr.  164; 
Markey  v.  Diamond,  1  Misc.  Rep.  97;  De  Nierth  v.  Sidner,  25  How. 
Pr.  419. 

Copies  of  letters,  documents,  or  papers,  upon  which  information  and 
belief  is  founded,  should  be  furnished.  Weerth  v.  Feldner,  11  Abb. 
Pr.  295;  De  Nierth  v.  Sidner,  25  How.  Pr.  419. 

Items. —  All  the  items  must  be  covered  by  the  fraud,  and  not  some  of 
them  only.  Toffey  v.  Williams,  5  Sup.  Ct.  (T.  &  C.)  294.  See  also 
Ely  v.  Si'eigler,  9  Abb.  Pr.  N.S.  35;  Madge  v.  Ping,  71  N.  Y.  608;  Bas- 
sett  v.  Pitts,  15  Hun,  464. 

Irregularities. —  An  order  of  arrest  will  not  be  set  aside  for  failure  to 
file  the  undertaking,  nor  because  it  was  a  second  order  in  the  same 
cause,  unless  the  moving  papers  specify  these  as  irregularities.  Dicker- 
hoff  v.  Ahlborn,  2  Abb.  N.   C.   372. 

Where  a  plaintiff  unites  in  his  complaint  two  causes  of  action,  one  of 
which  is  bailable  and  the  other  not,  he  waives  his  right  to  bail  as  to 
both,  and  an  order  of  arrest  cannot  be  sustained.  Madge  v.  Ping,  71 
X.  Y.  608,  revg.  s.  c,  12  Hun,  15. 

Joining  other  claim. —  Where  one  indebted  in  a  fiduciary  capacity 
gives  a  check  which  was  protested  for  nonpayment,  it  is  no  objection 
to  vacate  the  arrest  that  the  complaint  also  demands  the  costs  of  pro- 
test, they  not  being  claimed  as  a  separate  cause  of  action.  Shipman  v. 
Shafer,  14  Abb.  Pr.  449. 

Jurisdiction. —  Where  an  action  for  wrongful  injury  to  personal  prop- 
erty is  commenced  by  the  service  of  a  summons,  accompanied  by  an 
order  of  arrest,  jurisdiction  does  not  depend  upon  the  sufficiency  of 
the  affidavit  upon  which  the  order  of  arrest  was  made,  but  upon  the 
service  of  the  summons,  and  it  still  remains  though  the  order  be  set 
aside  as  improperly  granted.     McNeary  v.  Chase,  30  Hun,  491. 

Motion,  when  it  can  be  made. —  A  defendant  cannot  move  for  an  order 
to  discharge  him  from  arrest,  before  he  has  been  actually  arrested  by 


§  69.  Order  of  Arrest.  181 

the  officer,  and  served  with  the  papers.  Them  v.  Rackow,  44  How.  Pr. 
443. 

New  grounds  of  arrest  cannot  be  used  to  resist  motion  to  vacate. 
Chambers  v.  Durand,  33  j\.  Y.  Super.    ( 1  J.  &  S.)    193. 

Order  of  arrest,  statements  in. —  A  statement  in  an  order  of  arrest 
that  the  ground  therefor  "  is  the  conversion  of  money  embezzled  or 
fraudulently  misapplied  by  said  defendant  in  the  course  of  his  em- 
ployment as  attorney,"'  does  not  make  the  order  defective  as  being 
in  the  alternative,  since  it  is  merely  a  definition  of  the  offense  in 
equivalent  terms.  Quail  v.  Nelson,  39  App.  Div.  18;  Blank  v.  Nelson, 
39  App.  Div.  21. 

Privileged  from  arrest. —  See  next  section  and  notes. 

Second  arrest. — When  a  defendant  has  been  discharged  from  imprison- 
ment, by  due  course  of  law,  he  ought  not  to  be  rearrested,  for  the 
same  cause,  though  in  a  different  form  of  action.  Wright  v.  Ritter- 
man,  4  Robt.  704;  s.  c,  1  Abb.  Pr.  N.  S.  428.  S~o  also  Enoch  v.  Ernst, 
21  How.  Pr.  96. 

Settlement  after  the  fraud  will,  upon  motion,  be  cause  to  vacate  the 
arrest.     "Nelson  v.  Blanchfield,  54  Barb.   630. 

Principal's  right  to  arrest  factor  barred  by  receiving  notes  for  claim. 
Trunninger  v.  Busch,  7  Daly,  124. 

Waiver. —  In  an  action  commenced  by  a  warrant  of  arrest,  issued  on 
affidavits  showing  a  ground  of  arrest  extrinsic  of  the  cause  of  action, 
if  the  defendant  does  not  move  to  vacate  the  order  of  arrest,  he  admits 
that  the  warrant  was  rightly  issued.     Coles  v.  Hannigan,  8  Daly,  43. 

§  69.  Privilege  from  arrest.—  This  article  does  not  abridge 
or  otherwise  affect  a  privilege  from  arrest  given  by  law,  or 
a  right  of  action  for  the  breach  thereof.  A  privileged  per- 
son is  entitled  to  be  discharged  from  arrest,  by  the  order  of 
the  court  before  which  he  is  brought,  upon  proof,  by  affi- 
davit, of  the  facts  entitling  him  to  a  discharge;  or  he  may 
apply  for  and  obtain  an  order  for  his  discharge,  as  prescribed 
in  section  five  hundred  and  sixty-four  of  the  code  of  civil 
procedure. 

Notes   to   section   69. 

This  section  is  new,  and  is  applied  from  section  2904  of  the  Code 
of  Civil  Procedure  relative  to  justices'  courts. 

General  provision  as  to  privileges  from  arrest;  discharge  of  privileged 
person. —  Section  564  of  the  Code  of  Civil  Procedure,  referred  to  in  this 
section,  is  as  follows:  "This  title  does  not  abridge  or  affect  a  privi- 
lege from  arrest  given  by  law,  or  a  right  of  action  for  a  breach  thereof. 
A  privileged  person  is  entitled  to  be  discharged  from  arrest  where 
other  provision  is  not  made  therefor  by  law,  by  the  court,  or  a  judge 
thereof.     *     *     *     The  order   must  be  made  upon  proof,   by  affidavit, 


182  Order  of  Arrest.  §  TO. 

of  the  facts  entitling  the  applicant  to  the  discharge;  and  the  arrest 
and  discharge  are  not  a  bar  to  a  new  arrest,  after  the  privilege  has 
ceased.  The  court  or  judge  may  make  the  order  without  notice,  or 
may  require  notice  to  be  given  to  the  sheriff  (marshal)  or  to  the  plain- 
tiff, or  to  both." 

Attorney  or  counselor  is  privileged  from  arresl  when  "  he  is  employed 
in  a  cause  to  be  heard  at  that  term."     §  5G5,  Code  Civ.  Proc. 

Election  day. —  It  is  not  a  ground  for  setting  aside  an  order  of  arrest 
that  the  party  had  been  arrested  previously  in  the  same  suit,  and  on 
the  same  process,  on  a  day  of  general  election.  The  exemption  from 
arrest  expires  with  the  day  of  election,  and  the  parties  afterward 
stand  toward  each  other  as  if  no  previous  arrest  had  been  made. 
14  Johns.  346,  1  Wend.  32,  5  Wend.  90;  Petrie  v.  Fitzgerald,  1  Daly, 
401.  See  also  People  v.  Tweed,  63  N.  Y.  202,  confirming  5  Hun,  382; 
Young   v.   Weeks,  7   Daly,    115. 

Exemption. —  Defendant  was  arrested  in  the  street,  near  the  court 
room,  but  before  the  court  commenced  its  session.  He  had  gone  to 
attend  either  the  trial  or  proceedings  for  the  removal  of  the  cause  to 
another  court,  upon  justification  of  sureties,  and  when  arrested  was 
leaving  to  go  home,  because  he  thought  nothing  would  be  done.  Held, 
that  he  was  entitled  to  go  to  ascertain  if  anything  would  be  done  in 
the  action,  and  to  return  unmolested,  and  that  merely  stopping  to 
announce  to  the  counsel  for"  the  opposite  party  that  no  steps  would 
be  taken  was  not  such  a  deviation  from  his  journey  as  justified  his 
arrest.     Salhinger  v.  Alder,  2  Robt.  704. 

The  exemption  of  the  party  or  witness  from  the  arrest  is  a  personal 
privilege  which  can  be  waived,  and  the  waiver  is  complete  where  the 
party  or  witness  fails  to  claim  it  at  once,  and  does  some  act  in  the 
cause  in  reference  to  his  appearance,  such  as  perfecting  bail,  by  jus- 
tification of  the  sureties.  8  Abb.  Pr.  41G,  15  Barb.  26,  7  Cow.  366, 
5  How.  Pr.  233,  4  Hill,  59:  Petrie  v.  Fitzgerald,  1  Daly,  401;  Mackey 
v.  Lewis,  7  Hun.  83. 

§  TO.  Sections  applicable  as  to  undertakings,   et   cetera 

Sections  one  hundred  and  six  to  one  hundred  and  ten  of  this 
revision  inclusive  and  sections  one  hundred  and  twenty- 
seven  and  one  hundred  and  twenty-eight,  in  so  far  as  they 
relate  to  undertakings,  sureties  and  justification,  apply  to 
proceedings  under  this  title,  and  the  exceptions  to,  and  ex- 
amination of,  sureties,  whether  on  undertaking,  or  bail,  may 
be  made  and  conducted,  by  the  adverse  party,  as  prescribed 
therein. 

Note  to  section  70. 

This  section  is  new.     See  also   §   02. 

Note. —  There  are  no  sections  71   and  72. 


§  73.  Attac  1 !  .M  E N T.  183 

ARTICLE  II. 
Attachment. 

Section  73.  When  may  be  granted. 

74.  What  must  be  shown  to  procure  warrant. 

75.  Contents   of   warrant 

76.  Undertaking. 

77.  how  warrant  to  be  executed. 

78.  Attachment,  how  levied. 

79.  Certificate  of  defendant's  interest  to  be  furnished. 

80.  Person   refusing  certificate  may   oe   examined. 

81.  Marshal  may  maintain  action. 

82.  When   attachment   discharged,   et   cetera.     Property  to   be 

restored  to  defendant. 

83.  Service  of  summons   and   warrant  of   defendant. 

84.  Undertaking   of   defendant. 

85.  Claim  by  third  person;   bond  and  delivery  thereupon. 

86.  Judgment  upon  bond. 

87.  Action  upon  undertaking  where  warrant  is  vacated. 

88.  Return  by  marshal  attaching. 

89.  Application  to  vacate   or  modify  warrant   of   attachment. 

90.  Effect  of  vacating  warrant. 

91.  Judgment  where  property  has   been  attached. 

92.  Sections  applicable  as  to  undertaking,  et  cetera. 

§  73.  Attachment,  when  may  be  granted. —  A  warrant  of 
attachment  against  the  property  of  one  or  more  defendants 
must  be  granted,  upon  the  application  of  the  plaintiff,  as 
hereinafter  prescribed,  in  an  action  upon  one  or  more  of 
the  following  causes  of  action : 

1.  Upon  a  judgment. 

2.  Breach  of  a  contract,  express  or  implied. 

3.  Wrongful  conversion  of  personal  property. 

4.  Any  other  injury  to  personal  property,  in  consequence 
of  negligence,  fraud  or  misconduct. 

Notes   to   section   73. 

This  section  is  substantially  the  same  as  section  1316  of  the  Con- 
solidation Act  (Laws  1882,  chap.  410),  with  the  exception  of  sub- 
division 1,  "Upon  a  judgment,"  which  has  been  added. 

Fictitious  names;  no  authority  to  grant  attachments  on. —  This 
court  has  no  authority,  and  never  had,  to  grant  attachments  against 


1S4  Attachment.  §  74,  Subd.  1. 

persons  by  fictitious  names.  McCabe  v.  Doe,  2  E.  D.  Smith.  04; 
Gardner  v.  McKraft,  Daily  Reg..  Feb.  23,  1877;  Davenport  v.  Doady, 
3  Abb.  Pr.  409;  Solinger  v.  Patrick,  9  Daly,  151. 

Not  a  matter  of  right. —  An  attachment  cannot  be  demanded  as  a 
matter  of  right,  and  whether  in  a  particular  case  it  should  issue  is 
within  the  discretion  of  the  court;  an  order  therefore  refusing  the 
writ  is  not  reviewable.     Sarticell  v.  Field,  68  N.  Y.  341. 

§  74.  What  must  be  shown  to  procure  warrant. —  To  entitle 
the  plaintiff  to  such  a  warrant,  he  must  show,  by  affidavit, 
to  the  satisfaction  of  the  court,  as  follows: 

Note  to  section  74. 

This  section  is  taken  from  section  1317  of  the  Consolidation  Act 
(Laws  1882,  chap.  410^,  which  was  the  same  as  section  2906  of  the 
Code  of  Civil  Procedure.  Subdivision  2  of  this  section  has  been 
changed  so  that  the  departure  referred  to  in  subdivision  2  of  section 
1317  is  now  to  places  without  the  limits  of  the  city  of  !New  York 
as  now  constituted  under  the  Charter  (Laws  1897,  chap.  378,  as 
amended  in   1901),  which   includes  four  counties  and  five  boroughs. 

1.  That  a  sufficient  cause  of  action  exists  against  the  de- 
fendant to  recover  damages  for  one  or  more  causes  specified 
in  the  last  section.  If  the  action  is  upon  a  judgment,  or  to 
recover  for  breach  of  a  contract,  the  affidavit  must  show 
that  the  plaintiff  is  entitled  to  recover  a  sum  stated  therein, 
over  and  above  all  counterclaims  known  to  him. 

Notes  to  section  74,  subdivision   1. 

Affidavit,  requisites  of. —  It  is  the  uniform  practice  of  the  courts  in 
reviewing  proceedings  had,  if  possible,  to  sustain  them  by  every  reason- 
able and  warrantable  intendment.  The  creditor  is  not  required  to 
furnish  conclusive  evidence  of  the  facts  relied  on.  It  is  sufficient  if 
the  proof  has  a  legal  tendency  to  make  out,  in  all  its  parts,  a  case 
for  the  issuing  of  the  attachment;  and  if  the  facts  and  circumstances 
disclosed  fairly  call  for  the  exercise  of  judgment,  the  proceedings  are 
not  void.  To  defeat  jurisdiction  it  must  be  made  to  appear  that  there 
is  a  total  want  of  evidence  upon  some  particular  point.  The  rule  is 
the  same  whether  the  question  arises  in  a  direct  or  in  a  collateral 
proceeding.     Schoonmaker  v.  Spencer,  54  N.  Y.  366. 

Amount  due  must  be  shown  by  facts. —  The  statutes  giving  jurisdic- 
tion must  be   strictly  followed,  or  jurisdiction  will   not  be   acquired. 


§  74,  Subd.  1.  Attachment.  185 

An  affidavit  stating  only  that  the  defendant  is  indebted  to  the  attach- 
ing creditor  in  a  sum  named,  "  over  and  above  all  discounts,"  is  in- 
sufficient to  sustain  the  process,  and  both  that  and  all  subsequent 
proceedings  are  without  jurisdiction.  Solinger  v.  Patrick,  7  Daly,  408, 
48  Barb.  68.     See  also  Riley  v.  Skidmore,  6  N.  Y.  Supp.   107. 

When  the  affidavit  alleges  that  there  is  a  large  sum  of  money  due 
from  the  defendant,  but  omits  to  specify  the  amount  of  the  claim,  it 
will  be  insufficient.  Ackroyd  v.  Ackroyd,  20  How.  Pr.  93;  s.  c,  11 
Abb.  Pr.   345. 

An  averment  "  that  deponent  will  allege  in  his  complaint  herein " 
is  insufficient.      Axford  v.  Seguine,  70  App.  Div.  228. 

The  affidavit  must  state  facts  showing,  presumptively  at  least,  that 
the  amount  claimed  is  owing  to  plaintiff,  and  it  is  not  enough  merely 
to  'State  that  the  amount  is  due  to  him.  McLoughlin  v.  Naugle,  34 
Misc.  Rep.  385. 

In  an  affidavit  to  procure  an  attachment,  it  is  not  absolutely  neces- 
sary for  plaintiff  to  adopt  the  words  of  the  statute  in  order  to  show 
the  right  of  recovery,  and  the  facts  required  are  sufficiently  stated 
by  the  words,  "  Defendants  are  justly  indebted  to  him  in  the  sum. 
of  $511.31  over  all  set-offs  or  counterclaims  that  said  defendants  might 
have  against  this  plaintiff  to  his  knowledge."  Richerson  v.  Bunker, 
26   Misc.   Rep.    383. 

In  an  affidavit  for  an  attachment,  where  the  damages  are  unliqui- 
dated, it  is  necessary  to  set  out  the  facts  which  the  plaintiff  claims 
prove  the  damage,  in  order  that  the  court  may  determine  whether 
any  damage  has  been  sustained.     James  v.  Signell,  60  App.  Div.  75. 

To  sustain  an  attachment  in  an  action  on  contract,  the  specific  sum 
due  must  be  established  by  proof,  not  merely  averred,  and  if  plaintiff, 
by  adopting  the  wrong  measure  of  damages,  claims  too  much,  the 
attachment  must  be  set  aside.     Smith  v.  Sivenson,  26  Misc.  Rep.  151. 

Belief. —  The  facts  upon  which  belief  is  founded  must  be  stated. 
Camps  v.  Tibbets,  2  E.  D.  Smith,  20;  Fulton  v.  Beaton,  1  Barb. 
552;  Smith  v.  Luce,  14  Wend.  237,  20  Wend.  77,  145;  Steivart  v. 
Broum,  16  Barb.  367. 

An  affidavit  in  which  facts  are  stated  upon  belief  only  is  fatally  de- 
fective. Dewey  v.  Greene,  4  Den.  93;  Mott  v.  Lawrence,  9  Abb.  196, 
17  How.  559. 

An  affidavit  made  on  information  derived  from  a  person  not  named, 
and  not  under  oath,  without  any  explanation  of  the  reason  why  the 
affidavit  of  such  person  is  not  procured,  or  more  reliable  testimony 
obtained,  is  not  sufficient.  Information  from  third  parties  may  be 
sufficient,  where  the  source  and  nature  of  the  information  are  set 
forth  with  such  particularity  and  certainty  that  defendant  can  easily 
contradict  it  if  it  is  untrue,  and  the  plaintiff's  inability  to  procure  their 
affidavits  is  shown.    Greene  v.  Gonzales,  2  Daly,  412. 


186  Attachment.  §  74,  Subd.  2. 

The  affidavit  is  defective  where  the  important  allegations  are  all 
upon  information  and  belief,  the  source  of  information  being  said  to 
be  contained  in  affidavits  on  file  in  the  court,  when  the  affidavits  re- 
ferred to  are  not  quoted  from,  nor  are  their  contents  nor  any  por- 
tion of  them  stated.  Selser  Bros.  Co.  v.  Potter  Produce  Co.,  77  Hun, 
313.     See  also  Sizer  v.  Hampton,  etc.,  07  App.  Div.  547. 

The  omission  to  sta'e  in  the  affidavit,  made  upon  information  and 
belief,  the  names  of  the  informants,  and  to  excuse  the  failure  to  file 
their  affidavits,  is  a  fatal  defect,  and  calls  for  vacating  the  attach- 
ment. Acker,  Merrall  &  Gondii  v.  Saynisch,  25  Misc.  Rep.  415,  affg. 
26  Misc.  Rep.  836. 

It  is  not  necessary,  in  order  to  give  jurisdiction  to  issue  an  attach- 
ment, that  the  affidavit  should  state  specifically  that  a  summons  has 
been  issued  or  served;  a  statement  that  an  action  has  been  commenced 
is  sufficient.     ^Yallace  v.   Castle,  68  N.   Y.  370. 

Before  service  of  summons. —  An  attachment  can  be  allowed,  issued, 
and  served  before  the  service  of  the  summons  is  completed.  Corson 
v.  Ball,  47   Barb.  452. 

To  authorize  the  issuing  of  an  attachment  it  is  not  necessary  that 
a  summons  shall  have  been  served ;  for  that  purpose,  "  an  action  shall 
be  deemed  commenced  when  the  summons  is  issued."  Wallace  v. 
Castle.  68  N.  Y.  370.     See  also  §  30,  ante. 

Cause  of  action. —  Where  an  affidavit,  upon  an  application  for  an 
attachment,  alleges  that  "  the  defendants  are  indebted  to  us,  the  plain- 
tiff, in  the  sum  of  $3,260.85,  for  goods  sold  and  delivered,  for  which 
they  have  promised  but  failed  to  pay,"  it  sufficiently  states  a  cause  of 
action.  If  the  goods  were  not  payable  on  delivery,  but  were  sold  on 
credit,  it  rests  upon  the  defendant  to  show  such  to  be  the  case;  it  is 
not  necessary  for  the  plaintiff  to  deny  that  it  is  so  in  his  affidavit. 
Eiefer  v.  Webster,  6  Hun,  526. 

2.  That  the  defendant  is  either  a  foreign  corporation,  or 
not  a  resident  of  the  state;  or,  if  the  defendant  is  a  natural 
person,  and  a  resident  of  the  state,  that  he  has  departed,  or 
is  about  to  depart  from  the  county  where  he  last  resided,  to 
a  place  outside  the  city  of  New  York,  with  intent  to  defraud 
his  creditors,  or  to  avoid  the  service  of  a  summons,  or  keeps 
himself  concealed,  with  the  like  intent;  or  if  the  defendant 
is  a  natural  person,  or  a  domestic  corporation,  that  he  or  it 
has  removed,  or  is  about  to  remove  property  from  the  county 
where  the  defendant,  being  a  natural  person,  last  resided, 
or  being  a  corporation,  has  kept  its  principal  office,  to  a 
place  outside  of  the  city  of  New  York,  with  intent  to  de- 


g  74,  Subd.  2.  Attachment.  1ST 

fraud  his  or  its  creditors,  or  has  assigned,  disposed  of,  or 
secreted,  or  is  about  to  assign,  dispose  of,  or  secrete  prop- 
erty, with  the  like  intent;  or  where  for  the  purpose  of  pro- 
curing credit  or  the  extension  of  credit,  the  defendant  has 
made  a  false  statement  in  writing,  under  his  own  hand  and 
signature,  or  under  the  hand  and  signature  of  a  duly  au- 
thorized agent,  made  with  his  knowledge  and  acquiescence, 
as  to  his  financial  responsibility  or  standing.  Or  that  the 
defendant  being  a  natural  person  of  full  age,  and  a  resident 
of  the  state,  has  been  continuously  without  the  United 
States  for  the  space  of  six  months  or  more,  immediately 
before  the  application  and  either  that  he  has  not  made  a 
designation  of  a  person  upon  whom  to  serve  a  summons  in 
his  behalf  as  prescribed  in  section  four  hundred  and  thirty 
of  the  code  of  civil  procedure,  or  that  service  upon  the  per- 
son so  designated  cannot  be  made,  with  due  diligence,  in 
the  county  where  the  person  making  the  designation  resides. 
The  affidavit  must  be  filed  in  the  office  of  the  clerk  of  the 
court,  in  the  district  in  which  the  action  is  brought  when 
the  warrant  is  issued. 

Notes  to  section  74,  subdivision  2. 

Concealment. —  Where  the  essential  statutory  fact  to  be  shown  was 
concealment  with  intent  to  avoid  service  of  a  summons, —  Held,  that 
affidavits  alleging  absence  of  the  defendant  from  his  usual  place  of 
business  and  resort  soon  after  the  debt  had  been  demanded  of  him, 
coupled  with  his  refusal,  when  asked  by  plaintiff,  to  give  his  address 
or  residence,  contained  enough  to  fairly  call  upon  the  magistrate  for 
the  exercise  of  his  judgment  upon  the  evidence.  Easton  v.  Malavazi, 
7  Daly,  147. 

A  removal,  or  concealment,  of  himself  by  defendant,  with  intent 
to  avoid  the  service  of  a  summons,  is  a  sufficient  ground  for  an 
attachment,  and  it  is  not  necessary  to  show  that  the  concealment  was 
for  the  express  purpose  of  avoiding  service  in  the  present  action. 
Finn  v.  Mehrbach,  30  Civ.  Proc.  Rep.  242,  65  N.  Y.  Supp.  250. 

Departure. —  An  affidavit  which  states  positively  in  the  language  of 
the  statute  the  single  fact  that  the  defendant  had  departed  from  the 
county  with  intent  to  defraud  his  creditors,  or  had  departed  from 
the  county,  standing  alone,  unaided  by  any  other  fact  or  circumstance, 
is  not  legal  evidence  of  a  departure  from  the  county  with  intent  to 
defraud  his  creditors.  Furman  v.  Walter,  13  How.  Pr.  348;  Stewart 
v.  Brunn,  16  Barb.  367. 


1S8-  Attachment.  §  74,  Subd.  2. 

Affidavits  in  support  of  an  attachment,  issued  on  the  ground  that 
defendant  "  has  departed  from  this  State  to  England  with  intent  to 
defraud  his  creditors,  or  to  avoid  the  service  of  a  summons  in  this 
action,"  —  Held  insufficient.  Ringler  Co.  v.  Newman,  33  .Misc.  Rep. 
653. 

Allegations  concerning  the  absence  of  defendant  from  his  office  and 
his  home,  and  of  unsuc<  essful  attempts  to  reach  him, —  Held  sufficient 
to  show  fraudulent  intent  as  to  creditors,  titeivart  v.  Lyman,  62  App. 
Div.  182. 

Designation,  by  a  resident,  of  a  person  upon  whom  to  serve  a  sum- 
mons during  his  absence;  effect  and  revocation  thereof. — Section  430 
of  the  Code  of  Civil  Procedure,  mentioned  in  section  74  of  this  act, 
was  made  applicable,  because  of  the  frequent  protracted  absence  of 
residents  abroad,  and   is  as  follows: 

§  430.  A  resident  of  the  State,  of  full  age,  may  execute,  under  his 
hand,  and  acknowledge,  in  the  manner  required  by  law  to  entitle  a 
deed  to  be  recorded,  a  written  designation  of  another  resident  of  the 
State,  as  a  person  upon  whom  to  serve  a  summons,  or  any  process  or 
other  paper  for  the  commencement  of  a  civil  special  proceeding,  in 
any  court  or  before  any  officer,  during  the  absence  from  the  State  of 
New  York  of  the  person  making  the  designation ;  and  may  file  the 
same,  with  the  written  consent  of  the  person  so  designated,  executed 
and  acknowledged  in  the  same  manner,  in  the  office  of  the  clerk  of 
the  county  where  the  person  making  the  designation  resides.  The 
designation  must  specify  the  occupation,  or  other  proper  addition,  and 
the  residence  of  the  person  making  it,  and  also  of  the  person  desig- 
nated; and  it  remains  in  force  during  the  period  specified  therein,  if 
any;  or.  if  no  period  is  specified  for  that  purpose,  for  three  years  after 
the  filing  thereof.  But  it  is  revoked  earlier,  by  the  death  or  legal 
incompetency  of  either  of  the  parties  thereto;  or  by  the  filing  of  a 
revocation  thereof,  or  of  the  consent,  executed  and  acknowledged  in 
like  manner.  The  clerk  must  file  and  record  such  a  designation,  con- 
sent or  revocation ;  and  must  note,  upon  the  record  of  the  original 
designation,  the  filing  and  recording  of  a  revocation.  While  the  desig- 
nation remains  in  force  as  prescribed  in  this  section,  a  summons,  or 
any  process  or  other  paper  for  the  commencement  of  a  civil  special 
proceeding,  against  the  person  making  it,  in  any  court  or  before  any 
officer,  may  be  served  upon  the  person  so  designated,  in  like  manner 
and  with  like  effect,  as  if  it  was  served  personally  upon  the  person 
making  the  designation,  notwithstanding  the  return  of  the  latter  to 
the  State  of  New  York. 

Evidence  of  intent. —  The  affidavit  stated  that  the  defendant  was 
about  to  dispose  of  his  property  with  intent  to  defraud  his  creditors; 
that  defendant  left  the  country  two  months  before  and  went  to  Canada 
with  intent  to  remain  there,  taking  with  him  portions  of  his  goods;  that 


§  74,  Sued.  2.  Attachment.  189 

he  had  no  family  and  but  little  property;  that  he  was  offering  his  prop- 
erty for  sale;  that  he  had  told  the  plaintiff  he  would  be  glad  if  he  ever 
got  his  pay  of  him;  that  no  civil  process  could  be  served  on  him  be- 
cause he  kept  out  of  the  State,  and  that  he  refused  to  pay  anything  on 
plaintiff's  debt.  Held,  that  these  facts  showed  a  strong  case  of  intent 
to  dispose  of  property  to  defraud  creditors.  Rosenfield  v.  Howard,  15 
Barb.  546. 

Where  the  defendant,  when  called  upon  by  plaintiff  upon  several  oc- 
casions, to  pay  the  amount  of  his  demand,  put  it  off,  stating  that  her 
husband  every  night  took  all  the  money  which  she  had  obtained  during 
the  day,  and  paid  it  to  persons  in  the  city  of  New  York  from  whom  she 
had  purchased  goods,  and  when  the  payment  to  such  persons  was  dis- 
proved by  affidavit,  no  other  inference  could  be  drawn  by  the  court 
than  that  such  disposition  of  the  defendant's  money  was  made  with 
intent  to  defraud,  and  that  it  was  a  proper  case  for  an  attachment. 
Anderson  v.  O'Reilly,  54  Barb.  620. 

The  affidavit,  upon  the  ground  of  fraud,  alleged  the  facts  constitut- 
ing fraud,  upon  information  and  belief,  and  one  of  the  affiants  averred 
that  he  stated  to  defendant  the  facts,  that  defendant  did  not  deny 
them,  but  promised  to  immediately  call  and  settle  or  give  security. 
Held  sufficient  evidence  of  fraud  to  warrant  the  attachment.  Blake 
v.  Bernhard,  6  N.  Y.  Super.  74.  See  also  the  cases  of  Bump  v.  Daheny, 
36  N.  Y.  St.  Rep.  114,  12  N.  Y.  Supp.  901;  Pattison  v.  Delaney,  20  Civ. 
Proc.  Rep.  427. 

Hearsay. —  Statement  as  to  defendant's  departure  from  the  country 
must  be  on  information  and  belief.  Hearsay  is  not  enough.  Sickles  v. 
Sullivan,  5  Hun,  569;    Garrison  v.   Marshall,  44  How.   193. 

Nonresident. —  In  order  to  procure  an  attachment  against  a  non- 
resident, the  affidavit  should  state  the  facts  and  circumstances  on  which 
plaintiff  relies  to  make  out  his  cause  of  action,  and  these  facts  must 
be  stated  positively.     Wells  v.  Sisson,  14  Hun,  267. 

An  affidavit  which  states  that  the  plaintiff  has  a  debt  against  the 
defendant,  arising  upon  contract,  and  that  the  defendant  is  a  non- 
resident of  the  county,  is  enough  to  warrant  the  justice  in  issuing  an 
attachment.  Van  Kirk  v.  Wilds,  11  Barb.  520.  See  to  the  contrary, 
however,  Wells  v.  Sisson,  14  Hun,  267. 

An  affidavit  against  a  nonresident,  for  a  tort,  is  sufficient  in  respect 
to  the  matter  of  residence,  if  it  states  that  the  plaintiff  is  a  resident  of 
the  county,  and  that  the  defendant  is  not,  but  resides  in  another  county. 
10  Wend.  360,  13  Wend.  46,  14  Wend.  237,  20  Wend.  77,  1  Den.  592; 
Pope  v.  Hart,  35  Barb.  630;  s.  c,  23  How.  Pr.  215;  Cleios  v.  Rockland, 
etc.,  R.  R.  Co.,  2  Hun,  379. 

Upon  an  application  on  the  ground  of  the  nonresidence  of  the  de- 
fendant, the  affidavit  is  not  required  to  state  in  positive  terms  that  he 
is  not  a  resident  of  the  State.     It  is  sufficient  when  that  conclusion  is 


190  Attachment.  §  74,  Sued.  2. 

the  only  one  which  can  be  consistently  drawn  from  the  fact-  sel  forth 
in  the  affidavit.  Domicile  is  the  habitation  fixed  in  any  place  with  the 
intention  of  always  staving  there,  while  residence  is  much  more  tempo- 
rary in  its  character.  The  Mayor,  etc.,  of  New  York  City  v.  Genet,  4 
Hun,  487. 

The  fact  that  a  debtor,  who  resides  in  another  State,  lias  a  place  of 
business  within  this  St^te  does  not  make  him  a  resident  here,  so  as  to 
prevent  the  issuing  of  an  attachment  against  him  as  a  nonresident. 
Tanner  v.  Church,  1  Abb.  299,  distinguished  and  disapproved ;  Wallace 
&  Sons  v.  Castle,  68  X.  Y.  370. 

An  affidavit  for,  against  a.  foreign  corporation,  which  states  that  the 
plaintiff  resides  in  another  State,  but  does  not  state  that  the  cause  of 
action  arose  in  this  State  or  that  the  contract  sued  on  was  made 
therein,  is  insufficient  to  confer  jurisdiction  on  the  court.  Allison  \. 
Snider  Preserve  Co.,  20  Misc.  Rep.  367. 

'An  attachment  cannot  issue  out  of  this  court  upon  the  ground  of 
the  nonresidence  of  the  defendant,  unless  he  is  a  nonresident  of  the 
State  of  New  York.  Where  he  is  merely  a  nonresident  of  the  county  of 
New  York,  the  attachment  is  void,  and  therefore  where  he  was  not 
personally  served,  no  judgment  can  be  entered  against  him.  Dlllcr  v. 
Willis,  34  Misc.  Rep.  197. 

Removal  and  disposing  of  property. —  The  affidavit  must  disclose  the 
facts  from  which  the  legal  and  logical  deduction  would  be  that  the  de- 
fendant meant  to  remove  property  from  the  county  with  the  fraudulent 
intent  specified  in  the  statute.     Mott  v.  Lawrence,  9  Abb.  Pr.  196. 

The  mere  fact  of  defendant  closing  his  store,  and  packing  his  goods 
until  midnight,  and  the  store  being  closed  the  next  morning,  his  family 
having  been  removed  for  two  days  without  his  neighbors  being  informed 
of  it,  is  not  a  necessary  or  presumptive  legal  conclusion  that  he  meant 
to  remove  his  property  with  intent  of  defrauding  his  creditors.  Mott 
v.  Lawrence,  17  How.  Pr.  550,  9  Abb.  Pr.  190,  5  Robt.  001. 

Where  the  whole  charge  of  "  removing  and  disposing  of  property,  and 
departing  from  the  State,  with  intent  to  defraud  creditors,''  rested  upon 
the  fact  that  the  defendant  offered  to  sell  deponent  goods  for  less  than 
to  any  one  else,  and  requested  him  to  keep  it  a  secret,  it  was  held  in- 
sufficient  to  procure   an   attachment.     Frank   v.   Levie,   5   Robt.    599. 

The  facts  that  a  debtor  is  insolvent;  that  he  has  turned  over  to  two 
creditors  portions  of  his  goods  amounting  to  less  than  one-half  of  their 
respective  debts;  that  he  refuses  to  turn  over  any  goods  to  the  plain- 
tiffs or  to  pay  the  amount  due  to  them;  that  he  is  selling  off  his  stock 
in  trade  and  not  likely  to  continue  his  business,  do  not  furnish  sufficient 
evidence  to  authorize  a  justice  of  the  peace  to  issue  a  warrant  of  attach- 
ment against  him,  on  the  ground  that  he  has  disposed  or  is  about  to 
dispose  of  his  property  with  intent  to  defraud  his  creditors.  Horton  v. 
Funchcr,  14  Hun,  172. 


§  75.  Attachment.  191 

Allegations  in  affidavits  that  defendant  was,  to  deponent's  knowledge, 
about  to  remove  her  property  from  the  United  States  with  intent  to, 
defraud  creditors;  that  she  had  threatened  to  him  to  sell  all  her  prop- 
erty and  "  skip  out  "  if  the  claims  were  pressed ;  that  she  had  informed 
him  that  she  would  pay  no  debt  whatever;  with  proof  that  she  had 
advertised  her  business  for  sale  as  she  was  going  to  Europe,  and  would 
sell  it  and  her  wares  at  one-fourth  their  value, —  Held  sufficient  to 
support  an  attachment.  Fox  v.  Mays,  40  App.  Div.  1,  Gl  N.  Y.  Supp. 
295. 

Threats. —  Defendant,  on  being  informed,  after  his  refusal  to  pay  a 
note,  that  he  would  be  sued,  threatened,  if  he  was  sued,  "  to  turn  over 
all  his  property,  and  that  the  plaintiff  would  not  get  a  cent,"  there  is 
good  ground  for  granting  an  attachment.  Livermore  v.  Rhodes,  27 
How.  Pr.  506;   s.  c,  3  Robt.  626;   Gasherie  v.  Apple,  14  Abb.  Pr.  04. 

When  the  threat  is  "  to  make  an  assignment  "  simply,  without  any 
evidence    to    show    fraudulent   intent,    an    attachment    will    not    issue. 
Dickerson  v.  Bcnham,  20  How.  Pr.  343,  affg.   s.   c,   19  How.  Pr.  410; 
10   Abb.   Pr.    390;      Wilson  v.   Britton,   26    Barb.  562;  s.  c,  6  Abb.  Pr. 
97,  revg.  s.  c,  6  Abb.  Pr.  33. 

§  75.  Contents  of  warrant. —  The  warrant  must  be  granted 
by  the  court  at  the  time  when  the  summons  is  issued,  and 
must  be  issued  by  the  clerk  of  the  court  in  the  district  in 
which  the  action  is  brought,  and  it  must  be  indorsed  upon 
or  annexed  to  the  summons.  It  must  be  subscribed  by  the 
clerk,  and  must  briefly  recite  the  ground  of  the  attachment. 
It  must  require  the  marshal,  to  whom  the  summons  is  de- 
livered, to  attach  on  or  before  a  day  specified  therein,  which 
must  be  at  least  six  days  before  the  return  of  the  summons, 
and  safely  to  keep,  as  much  of  the  defendant's  personal 
property,  within  the  city  of  New  York,  as  will  satisfy  the 
plaintiff's  demand,  with  the  costs  and  expenses  and  to  make 
return  of  his  proceedings  thereon  to  the  court,  at  the  time 
when  the  summons  is  returnable.  The  amount  of  the 
plaintiff's  demand  must  be  specified  in  the  warrant  as  stated 
in  the  affidavit.  Nothing  in  this  section  shall  be  construed 
to  prevent  a  valid  warrant  of  attachment  issuing  in  a  proper 
case  against  a  non-resident  of  the  city  of  New  York. 

Notes  to  section  75. 

This  section  is  the  same  as  section  1318  of  the  Consolidation  Act 
(Laws    18S2,    chap.    410),    with    the    exception    that    from    the    words 


]92  Attachment.  §76. 

'*'  Nothing  in  this  section  "  clown  to  the  end  thereof  is  new.  This  addi- 
tion was  necessitated  bj  the  eases  of  Rosenthal  v.  Grouse,  12  Daly, 
529;  reported  also  in  1  How.  X.  S.  447,  and  7  Civ.  Code  Rep.  145,  and 
Sullivan  v.  Presdee,  9  Daly,  5.52,  where  it  was  held,  that  this  court 
did  not  have  jurisdiction  against  a  nonresident  defendant,  by  reason 
of  the  short  summons,  which  allowed  a  shorter  period  than  six  day; 
in  the  return  day  of  a  summons  in  an  action  against  a  nonresident. 
The  return  day  of  six  days  in  attachment  cases  caused  the  court  in 
the  cases  above  cited,  because  of  the  inconsistency  of  these  "  return 
days,"  to  so  decide,  and  it  was  for  the  purpose  of  removing  all  doubt 
on  this  troublesome  and  mixed  question  that  the  Legislature  in  this  act 
omitted  "  Short  summonses,"  and  added  the  amendment  herein  referred 
to,  as  we  say  in  our  notes,  to  section  56  of  this  act,  in  referring  to  this 
same  case,  so  we  repeat  here  an  account  of  the  cases  omissus  in  the 
law.  This  case  of  Rosenthal  v.  Grouse,  supra,  is  well  worth  the  atten- 
tion of  the  student  and  of  the  practitioner  to  show  how  "  fearfully  and 
wonderfully  laws  are  sometimes  enacted."  See  also  our  notes  in  our 
Fourth  Edition,  page  189,  etc.,  under  section  1316  of  the  Consolidation 
Act,  which  notes  were  also  contained  in  our  Third  Edition,  published 
in  1894,  but  strange  to  say,  the  Legislature  did  not  remedy  the  defect 
until  the  passage  of  the  present  act. 

Amendment. —  Warrant  may  be  amended.  King  v.  King,  68  App.  Div. 
189,  74  X.  Y.  Supp.    (108  St.- Rep.)    119. 

Amount. — ■  The  amount  of  the  plaintiff's  demand  must  be  specified  in 
the  warrant,  as  stated  in  the  affidavit,  and  it  must  not  be  for  a  sum  ex- 
ceeding the  justice's  jurisdiction.  Mattison  v.  Bancus,  Hill  &  D.  Supp. 
521. 

Nonresident. —  See  notes   to   §   74,    subd.   2. 

§  76.  Undertaking. — Before  granting  the  warrant,  the 
court  must  require  a  written  undertaking  to  the  defendant, 
on  the  part  of  the  plaintiff,  with  one  or  more  sureties,  ap- 
proved by  the  court,  to  the  effect  that,  if  the  defendant  re- 
covers judgment,  or  the  warrant  of  attachment  is  vacated, 
the  plaintiff  will  pay  all  costs  which  may  be  awarded  to  the 
defendant,  and  all  damages  which  he  may  sustain  by  reason 
of  the  attachment,  not  exceeding  the  sum  specified  in  the 
undertaking,  which  must  be  at  least  twice  the  amount  of 
the  plaintiff's  demand,  as  stated  in  the  warrant,  and  in  no 
case  less  than  two  hundred  dollars,  and  that  if  the  plaintiff 
recovers  judgment,  he  will  pay  to  the  defendant  all  money 
received  by  him  from  property  taken  by  virtue  of  the  war- 


§  77.  Attachment.  193 

rant  of  attachment,  or  upon  any  bond  given  therefor,  over 
and  above  the  amount  of  the  judgment  and  interest  there- 
upon. 

Notes  to  section  76. 

This  section  is  substantially  the  same  as  section  1319  of  the  Con- 
solidation Act  (Laws  1882,  chap.  410),  except  as  to  the  amount  of 
the  undertaking,  which  is  similar  to  section  2908  of  the  Code  of  Civil 
Procedure,  appertaining  to  justices'  courts.  Section  1319  of  the  Con- 
solidation Act  is  taken  from  sections  2908  and  3219  of  the  Code  of  Civil 
Procedure  "  Requisites   of  certain  undertakings,"   combined. 

Amendment. —  A  justice  of  this  court  has  power  to  allow  an  amend- 
ment of  a  defective  undertaking  on  attachment.  Finn  v.  Mehrbach,  30 
Civ.  Proc.  Rep.  242,  65  N.  Y.  Supp.  250. 

Amendment  of  undertaking  can  only  be  had.  with  consent  of  the 
sureties.  Langley  v.  Warren,  1  N.  Y.  606;  s.  c,  3  How.  Pr.  363,  1 
Code  Rep.  Ill;  Wilson  v.  Allen,  3  How.  Pr.  369.  Consult  however 
Wood  v.  Kelly,  2  Hilt.  334;  Irwin  v.  Muir,  13  How.  Pr.  409;  s.  c,  4 
Abb.  Pr.   133.     See    Robinson  v.   Moran,  23  Week.  Dig.  326. 

Amount  of  liability  omitted. —  An  attachment  in  this  court  is  not 
invalidated  by  the  fact  that  the  undertaking  stated  no  maximum  amount 
of  liability,  but  left  the  amount  in  blank,  as  there  is  no  provision  of 
law  forbidding  sureties  from  binding  themselves  in  an  unlimited, 
amount.     Tischler  v.  Fishman,  34  Misc.  Rep.   172. 

Exception  to,  and  justification  of,  sureties. —  By  section  70  of  this  act 
sections  106  to  110  and  sections  127  and  128,  relating  to  undertakings, 
sureties,  and  justifications,  are  made  applicable. 

Mistakes,  omissions,  defects,  and  irregularities,  and  general  rules  re- 
specting affidavits,  bonds,  and  undertakings. —  Code  of  Civil  Procedure, 
sections  728,  729,  730,  and  810  to  816,  relating  to  affidavits  and  under- 
takings, apply  to  this  court  by  section  3347,  subdivision  6  of  said  Code, 
making  them  applicable  to  all  courts. 

§  77.  How  warrant  to  be  executed. —  The  marshal  to  whom 
the  warrant  of  attachment  is  delivered  must  execute  it  at 
least  six  days  before  the  return  day  of  the  summons,  by 
levying  upon  so  much  of  the  property  of  the  defendant  here- 
inafter mentioned,  as  will  satisfy  the  plaintiff's  demand  with 
costs  and  expenses  and  must  safely  keep  the  same  to  be 
disposed  of  as  prescribed  in  this  title  and  must  immediately 
make  an  inventory  thereof  stating  therein  the  estimated 
value  of  each  article  or  item.  Such  levy  can  be  made  on 
the  following  property : 
13 


194  Attachment.  §  78. 

1.  Goods  and  chattels  of  the  defendant  found  in  the  city 
of  New  York  not  exempt  from  levy  and  sale  by  virtue  of 
an  execution  including  money  and  bank  notes. 

2.  The  rights  or  shares  which  the  defendant  has  in  the 
stock  of  an  association  or  corporation  having  a  place  of  busi- 
ness in  the  city  of  New  York,  together  with  the  interest 
and  profits  thereon,  and  the  marshal's  certificate  cf  the 
sale  thereof  entitles  the  purchaser  to  the  same  rights  and 
privileges,  with  respect  thereto,  which  the  defendant  had, 
when  the}*  were  so  attached. 

3.  Causes  of  action  arising  upon  contract,  including  bonds, 
promissory  notes,  or  other  instruments  for  the  payment  of 
money  only,  negotiable  or  otherwise,  whether  past  due,  or 
yet  to  become  due,  executed  by  a  corporation,  or  by  a  pri- 
vate person,  either  within  or  without  the  state,  which  belong 
to  the  defendant,  and  are  found  within  the  city,  and  the 
levy  of  the  attachment  thereupon  is  deemed  a  levy  upon, 
and  a  seizure  and  attachment  of,  the  debt  represented 
thereby. 

Notes  to  section  77. 

This  section  is  taken  from  section  1320  of  the  Consolidation  Act 
(Laws  1882,  chap.  410).  It  was  formerly  the  same  as  section  2909  of 
the  Code  of  Civil  Procedure. 

Exempted  property. —  The  exemption  of  articles  from  execution 
granted  by  Code  of  Civil  Procedure,  section  1390,  is  absolute.  In  the 
case  of  the  further  articles  exempted1  by  section  1391,  "  necessary  house- 
hold furniture,  working  tools  and  team,  etc.,  not  exceeding  in  value 
$250,"  the  exemption  is  limited  and  indefinite  and  must  be  asserted. 
And  if  an  officer  levy  upon  the  latter  class  of  property  under  section 
2909,  Code  of  Civil  Procedure,  the  debtor  must  claim  the  exemption 
and  notify  the  officer  thereof  before  he  can  maintain  against  such  officer 
an  action  either  for  conversion  or  replevin.  Wilcox  v.  Howe,  39  N.  Y. 
St.  Rep.  303,  12  N.  Y.  Supp.  783,  59  Hun,  270,  20  Civ.  Proc.  Rep.  214. 

Where  the  warrant  may  be  served  or  executed. —  Section  9  of  this  act 
authorizes  process  to  be  served  or  executed  anywhere  in  the  greater 
"  City  of  New  York,"  which  includes  four  counties  and  five  boroughs. 

§  78.  Attachment,  how  levied. —  A  levy  under  a  warrant 
of  attachment  upon  personal  property  capable  of  manual 
delivery,  including  a  bond,  a  promissory  note,  or  other  in- 
strument for  the  payment  of  money,  must  be  made  by  taking 


§  78.  Attachment.  195 

the  same  into  the  marshal's  actual  custody.  He  must  there- 
upon, without  delay,  deliver  to  the  person  from  whose  pos- 
session the  property  is  taken,  if  any,  a  copy  of  the  warrant, 
and  of  the  affidavits  upon  which  it  was  granted.  Upon  other 
personal  property,  it  must  be  made  by  leaving  a  certified 
copy  of  the  warrant  and  a  notice  showing  the  property  at- 
tached, with  the  person  holding  the  same;  or  if  it  consists 
of  a  demand,  other  than  as  specified  in  this  section  with  the 
person  against  whom  it  exists  or,  if  it  consists  of  rights  or 
shares  in  the  stock  of  an  association  or  corporation,  or  inter- 
ests or  profits  thereon,  with  the  president,  or  other  head 
of  the  association  or  corporation,  or  the  secretary,  cashier, 
or  managing  agent  thereof. 

Notes  to  section  78. 

This  section  is  taken  from  section  649  of  the  Code  of  Civil  Procedure. 

Incapable  of  manual  delivery. —  The  proper  course  of  proceeding  in 
attaching  property  incapable  of  manual  delivery,  stated.  Mechanics 
&  Traders'  Bank  of  Jersey  City  v.  Dakin,  33  How.  Pr.  310. 

To  make  the  levy  of  an  attachment  upon  property  incapable  of  man- 
ual delivery  effectual,  it  is  not  necessary  that  the  notice  "  showing  the 
property  levied  on,"  required  in  such  case  by  section  235  of  the  Code  to 
be  served  with  the  certified  copy  of  the  warrant  of  attachment,  should 
specify  particularly  the  property  or  debts  supposed  to  be  in  the  posses- 
sion of  or  owned  by  the  individual  served.  A  general  notice  by  the 
sheriff  that  he  attaches  all  property,  debts,  etc.,  belonging  or  owing  to 
the  defendant  in  the  attachment  suit,  in  the  possession  or  under  the 
control  of  the  individual  served,  is  sufficient.  O'Brien  v.  Mechanics  & 
Traders'  Fire  Ins.  Co.,  56  N.  Y.  52;  s.  c,  15  Abb.  Pr.  N.  S.  222.  And 
see  People  v.  St.  Nicholas  Bank  Co.,  44  App.  Div.  316,  60  N.  Y.  Supp. 
719. 

Not  sufficient  property. —  There  is  no  abuse  of  process  where  the  prop- 
erty attached  is  not  sufficient  to  satisfy  the  execution.  Reily  v.  Skid- 
more,  6  N.  Y.  Supp.  107. 

Second  attachment. —  Where  property  was  seized  and  removed  by 
virtue  of  an  attachment,  the  plaintiff,  having  been  nonsuited  on  the 
trial,  immediately  sued  out  another  attachment,  upon  which  the  officer 
who  served  the  first  seized  the  same  property  in  his  own  possession, 
on  the  second  attachment,  and  afterward  sold  it  on  the  execution  in 
that  suit.  Held,  that  defendants  were  entitled  to  show  the  appropria- 
tion of  the  property  on  the  process  in  the  second  attachment  suit  in 
reduction  of  damages.     Earl  v.  Spooner,  3  Den.  246.     And  see  Bennett 


196  Attachment.  §§  79,  80. 

v.  Brown,  31  Barb.  158:  affd.,  20  N.  Y.  99.     See  also  Still  Stove  Works 
V.  Scott,  62  App.  Div.  560,  71  N.  Y.  Supp.  181. 

§  79.  Certificate  of  defendant's  interest  to  be  furnished — 
Upon  the  application  of  a  marshal,  holding  a  warrant  of  at- 
tachment, the  president  or  other  head  of  an  association  or 
corporation,  or  the  secretary,  cashier,  or  managing  agent 
thereof,  or  a  debtor  of  the  defendant,  or  a  person  holding 
property,  including  a  bond,  promissory  note,  or  other  in- 
strument for  the  payment  of  money,  belonging  to  the  de- 
fendant, must  furnish  to  the  marshal  a  certificate,  under 
his  hand,  specifying  the  rights  or  number  of  shares  of  the 
defendant,  in  the  stock  of  the  association  or  corporation, 
with  all  dividends  declared,  or  encumbrances  thereon,  or 
the  amount,  nature  and  description  of  the  property,  held 
for  the  benefit  of  the  defendant,  or  of  the  defendant's  in- 
terest in  property  so  held,  or  of  the  debt  or  demand  owing 
to  the  defendant,  as  the  case  requires. 

Notes  to  section  79. 

This  section  is  taken  from  section  650  of  the  Code  of  Civil  Procedure. 

Effect  of  certificate;  mistake. —  Party  giving  certificate  is  not  estopped 
from  showing,  in  an  action  brought  against  him  on  the  faith  of  such 
statement,  that  he  was  honestly  mistaken  in  making  it.  Almy  v. 
Thurber,  99  N.  Y.  407. 

§  80.  Person  refusing  certificate  may  be  examined. —  If  a 
person,  to  whom  application  is  made,  and*  prescribed,  in  the 
last  section,  refuses  to  give  such  a  certificate;  or  if  it  is 
made  to  appear  by  affidavit,  to  the  satisfaction  of  the  court, 
that  there  is  reason  to  suspect  that  a  certificate  given  by  him 
is  untrue,  or  that  it  fails  fully  to  set  forth  the  facts,  re- 
quired to  be  shown  thereby,  the  court  may  make  an  order, 
directing  him  to  attend,  at  a  specified  time,  at  the  court  in 
the  district  in  which  the  action  is  brought,  and  submit  to 
an  examination,  under  oath,  concerning  the  same. 

*  So  in  the  original ;  should  be  "  as." 


§§  81, 82.  Attachment.  197 

Notes  to  section  80. 

This  section  is  substantially  the  same  as  section  651  of  the  Code  of 
Civil  Procedure,  with  the  "  referee  "  part  thereof  omitted,  as  this  court 
has  no  power  to  order  a  reference. 

Effect. —  The  proceeding  provided  for  in  this  section  is  for  the  benefit 
of  the  creditor  and  sheriff,  but  they  are  not  bound  to  resort  to  it,  nor 
are  they  bound  by  the  certificate  if  furnished.  Refusal  to  give  it  does 
not  suspend  action  on  the  attachment,  nor  prevent  a  levy  until  an 
examination  is  had.  O'Brien  v.  Mechanics  &  Traders'  Fire  Ins.  Co., 
56  N.  Y.  52. 

§81.  Marshal  may  maintain  action. —  The  marshal  must, 
subject  to  the  direction  of  the  court,  collect  and  receive  all 
debts,  effects,  and  things  in  action  attached  by  him.  He 
may  maintain  any  action  or  special  proceeding  in  his  own 
name  or  in  the  name  of  the  defendant,  which  is  necessary, 
for  that  purpose,  or  to  reduce  to  his  actual  possession  an 
article  of  personal  property,  capable  of  manual  delivery, 
but  of  which  he  has  been  unable  to  obtain  possession,  and 
he  may  discontinue  such  an  action  or  special  proceeding,  at 
such  time  and  on  such  terms,  as  the  court  directs. 

Note  to  section  81. 

This  section  is  taken  from  section  655,  subdivision  1  of  the  Code  of 
Civil  Procedure. 

§  82.  When  attachment  discharged,  et  cetera,  property  to  be 
restored  to  defendant. —  Where  a  warrant  of  attachment  or  a 
writ  of  replevin  is  vacated,  or  annulled,  or  an  attachment  is 
discharged,  upon  the  application  of  the  defendant,  the  mar- 
shal must,  except  in  a  case  where  it  is  otherwise  expressly 
prescribed  by  law.  upon  an  order  made  by  the  court  to  that 
effect,  deliver  over  to  the  defendant,  or  to  the  person  entitled 
thereto,  upon  reasonable  demand,  and  upon  payment  of  all 
costs,  charges  and  expenses,  legally  chargeable  by  the  mar- 
shal, all  the  attached  personal  property  remaining  in  his 
hands,  or  that  portion  thereof,  as  to  which  the  attachment 
is  discharged;  or  the  proceeds  thereof,  if  it  has  been  sold 

by  him. 

Note  to  section  82. 

This  section  is  the  same  as  section  709  of  the  Code  of  Civil  Procedure. 


198  Attachment.  §§83,84. 

§  83.  Service  of  summons  and  warrant  on  defendant The 

marshal  must,  immediately  after  making  inventory,  and  at 
least  six  days  before  the  return  day  of  the  summons,  serve 
the  summons,  together  with  the  warrant  of  attachment  and 
inventory,  upon  the  defendant,  by  delivering  to  him  person- 
ally a  copy  of  each,  if  he  can,  with  reasonable  diligence,  be 
found  within  the  city,  or  if  he  cannot  be  so  found,  by  leav- 
ing a  copy  of  each,  certified  by  the  marshal  at  the  last  placo 
of  residence  of  the  defendant  in  the  city,  with  a  person  of 
suitable  age  and  discretion,  or  if  such  person  cannot  be  found 
there,  by  posting  them  on  the  outer  door,  and  also  deposit- 
ing another  copy  of  each  in  the  post-office,  inclosed  in  a 
sealed  post-paid  wrapper,  directed  to  the  defendant  at  his 
residence;  or  if  the  defendant  has  no  place  of  residence  in 
the  city,  by  delivering  them  to  the  person  in  whose  posses- 
sion the  property  attached  is  found. 

Note  to  section  83. 

This  section  is  substantially  section  1321  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  and  is  the  same  as  section  2910  of  the  Code 
of  Civil  Procedure,  relating  to  justices'  courts.  Section  55  provides 
that  an  order  of  arrest,  warrant  of  attachment,  or  requisition  to  re- 
plevy shall  be  served  and  executed  by  a  marshal. 

§84.  Undertaking  by  defendant — The  defendant,  or  his 
attorney,  or  agent  in  his  behalf,  may,  at  any  time  before 
judgment  is  rendered  in  the  action,  execute  and  deliver  to 
the  marshal  an  undertaking  to  the  plaintiff  in  a  sum  speci- 
fied therein,  at  least  twice  the  value  of  the  property  at- 
tached, as  stated  in  the  inventory,  with  one  or  more  sure- 
ties, approved  by  the  marshal  or  by  a  justice  of  the  court, 
and  to  the  effect,  that  if  the  judgment  is  rendered  against 
the  defendant  and  an  execution  is  issued  thereupon,  within 
six  months  after  the  giving  of  the  undertaking,  the  prop- 
erty attached  shall  be  produced  to  satisfy  the  execution. 
Thereupon  the  marshal  must  deliver  the  property  to  the 
defendant. 


§  85.  Attachment.  109 

Notes  to  section  84. 

This  section  is  the  same  as  section  1322  cf  the  Consolidation  Act  (Laws 
1882,  chap.  410),  and  is  section  2911  of  the  Code  of  Civil  Procedure, 
relating  to  justices'  courts. 

Undertaking  to  discharge  attachment. —  As  to  effect  of  undertaking 
to   discharge   attachment,   see  Cockroft   v.    Clafflin,  64  Barb.   464. 

The  sheriff  must  retain  the  property  attached  until  the  sureties 
justify,  when  bond  is  given  by  defendant  claiming  redelivery  to  him. 
Moses  v.  Watcrbury  Button  Co.,  15  Abb.  Pr.  N.  S.  205. 

One  undertaking  cannot  be  given  to  discharge  two  attachments,  issued 
in  different  actions.     Walton  v.  Daly,  17  Hun,  601. 

§  85.  Claim  by  third  person;  bond  and  delivery  thereupon. — 
If  a  person,  not  a  party  to  the  action,  claims  any  property 
attached,  which  is  not  reclaimed  by  the  defendant,  as  pre- 
scribed in  the  last  section,  he  may,  at  any  time  after  the 
seizure  and  before  execution  is  issued  upon  a  judgment  ren- 
dered in  the  action,  execute  and  file  with  the  clerk  a  bond 
to  the  plaintiff,  with  one  or  more  sureties  approved  by  the 
marshal  or  by  a  justice,  in  a  penalty  at  least  twice  the  value 
of  the  property  claimed,  and  conditioned  that,  in  an  action 
upon  the  bond  to  be  commenced  within  three  months  there- 
after, the  claimant  will  establish  that  he  was  the  general 
owner  of  the  property  claimed  at  the  time  of  the  seizure;  or 
if  he  fails  so  to  do,  that  he  will  pay  to  the  plaintiff  the  value 
thereof,  with  interest.  The  marshal  must  thereupon  de- 
liver the  property  claimed  to  the  claimant. 

Notes  to  section  85. 

This  section  is  substantially  the  same  as  section  1323  of  the  Con- 
solidation Act  (Laws  1882,  chap.  410),  and  the  same  as  section  2912  of 
the  Code  of  Civil  Procedure. 

Bond;  when  insufficient. —  These  provisions  are  for  the  benefit  of  the 
real  owner,  as  well  as  of  that  of  the  plaintiff,  and  a  bond  for  less  than 
double  the  value  of  the  property,  though  it  be  more  than  double  the 
amount  of  the  debt  for  which  the  attachment  was  issued,  is  insufficient. 
Kamena  v.  Warren,  6  Duer,  698;   s.  c,  6  Abb.   193. 

Undertaking. —  A  third  party  claiming  the  property  attached,  and 
offering  an  undertaking  under  section  1323  of  the  Consolidation  Act, 
gains  thereby  simply  the  right  to  the  possession  of  the  property  pend- 
ing the  determination  of  his  title  thereto,  in  an  action  to  be  brought 
upon  the  undertaking,  which  does  not  stay  proceedings  in  the  action 


200  Attachment.  §§  86,  ST. 

in  which  the  attachment  issued  until  the  determination  of  the  question 
of  title.    Finn  v.  Mchrbach,  30  Civ.  Proc.  Rep.  242,  65  N.  Y.  Supp.  250. 

§  86.  Judgment  upon  bond. —  A  judgment  for  the  plaintiff, 
in  an  action  upon  a  bond,  given  as  prescribed  in  the  last 
section,  must  award  to  him  the  value  of  the  property  seized 
and  delivered  to  the  claimant,  with  interest  thereupon  from 
the  time  of  the  delivery.  If  the  amount  so  recovered  ex- 
ceeds the  amount  which  the  plaintiff  recovers  in  the  action 
in  which  the  warrant  of  attachment  was  issued,  he  is  liable 
to  the  defendant  in  that  action  for  the  excess. 

Note  to  section  86. 

This  section  is  the  same  as  section  1324  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  and  the  same  as  section  2913  of  the  Code  of 
Civil   Procedure,   relating  to   justices'  courts. 

§  87.  Action  upon  undertaking  where  warrant  is  vacated. — 
If  the  warrant  of  attachment  is  vacated  or  annulled,  the 
defendant  may  maintain  an  action,  upon  the  bond  and  under- 
taking specified  in  the  last  two  sections,  in  his  own  name, 
in  the  same  manner  and  with  the  like  effect  as  the  plaintiff 
might  have  done  if  the  warrant  had  remained  in  full  force. 

Notes  to  section  87. 

This  section  is  the  same  as  section  1325  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  and  the  same  as  section  2914  of  the  Code  of 
Civil   Procedure,   relating  to   justices'  courts. 

Annulled. —  As  to  the  meaning  of  this  word  in  this  section,  see  §  3343, 
subd.  12,  Code  Civ.  Proc. 

Expenses  and  counsel  fees. —  Expenses  and  counsel  fees,  incurred  by 
a  party  in  preparing  for  and  trying  an  attachment  suit,  are  recoverable 
under  the  bond  given  upon  the  issuing  of  the  attachment.  Northrup  v. 
Garrett,  17  Hun,  497. 

Where  a  motion  to  vacate  an  attachment,  although  at  first  success- 
ful, is  denied  on  appeal,  but  not  apparently  on  the  merits,  and  the 
action  is  thereafter  tried  and  results  in  a  judgment  dismissing  the 
complaint,  the  surety  upon  the  undertaking  given  to  secure  the  attach- 
ment is  liable  for  the  costs  and  expenses  of  the  proceedings  to  vacate 
the  attachment  as  well  as  for  the  costs  and  expenses  of  defending  the 


§  88.  Attachment.  201 

action.  Tyng  v.  American  Surety  Co.,  69  App.  Div.  137.  And  see 
s.  c,  48  App.  Div.  240,  62  N.  Y.  Supp.  843. 

Objections  to  sufficiency  of  the  bond,  or  the  manner  of  its  execution 
must  be  made  on  the  trial.  They  cannot  be  raised  on  appeal.  North- 
rup  v.  Garrett,  17  Hun,  497. 

See  also  §   1,  subd.  3,  and  notes. 

§  88.  Return  by  marshal  attaching. —  The  marshal  execut- 
ing the  warrant  of  attachment  must,  at  the  time  when  and 
the  place  where  it  is  returnable,  make  a  return  thereto, 
under  his  hand,  stating  all  his  proceedings  thereupon.  He 
must  deliver  to  the  clerk,  with  the  return,  each  bond  or 
undertaking  delivered  to  him,  pursuant  to  any  of  the  fore- 
going provisions  of  this  article,  and  a  copy  certified  by  him, 
of  the  inventory  of  the  property  attached.  The  return 
must  state  the  manner  in  which  the  warrant  and  inventory 
were  served,  and,  if  they  were  served  otherwise  than  by 
delivering  a  copy  thereof  to  the  defendant  personally,  the 
reason  therefor,  and  the  name  of  the  person  to  whom  the 
copy  was  delivered,  unless  his  name  is  unknown  to  the  mar- 
shal; in  which  case  the  return  must  describe  him  so  as  to 
identify  him,  as  nearly  as  may  be. 

Notes  to  section  88. 

This  section  is  the  same  as  section  1326  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  and  the  same  as  section  2915  of  the  Code  of 
Civil  Procedure,  relative  to  justices'  courts. 

Insufficient  return. —  Where  the  officer  in  his  return  to  an  attachment 
stated  that  "  because  the  defendant  could  not  be  found  in  the  city  and 
county  of  New  York,  I  left  a  copy  of  the  within  attachment  and  of  said 
inventory,  duly  certified  by  me,  at  the  last  place  of  residence  of  the 
said  defendant," —  Held  defective.  The  place  of  residence  should  have 
been  stated  specifically,  or  at  least  whether  it  was  within  the  county 
of  New  York.  Egbert  v.  Watson,  21  How.  429.  And  see  Roscnfield  v. 
Howard,  15  Barb.  546. 

A  return  of  a  levy,  without  stating  that  a  copy  of  the  attachment  was 
served  by  leaving  a  copy  at  the  dwelling-house  or  other  place  of  abode, 
of  the  defendant  is  not  sufficient.     Willard  v.  Sperry,  16  Johns.  121. 

Sufficient  return. —  A  return  of  a  levy  on  property  without  saying  "  of 
the  defendant,"  or  a  return  of  a  delivery  of  a  copy,  without  saying  "  a 
certified  copy," —  Held  sufficient.  Johnson  v.  Moss,  20  Wend.  145 ; 
Van  Kirk  v.  Wilds,   11   Barb.   520,  and  other  cases.     See   Willard  v. 


202  Attachment.  §  89. 

Sperry,   16  Johns.    121;   Johnson   v.   Moss,  20  Wend.   145;    Yun   Kirk   v. 
Wilds,  11   Barb.  520.  4  X.  Y.  254.  30  How.  326. 

§  89.  Application  to  vacate  or  modify  warrant  of  attachment. 
—  A  defendant,  whose  property  has  been  attached,  may, 
upon  the  return  of  the  summons,  or  before  such  return  on 
written  notice  of  at  least  twenty-four  hours  to  the  plaintiff 
or  his  attorney,  apply  to  the  court  out  of  which  the  warrant 
of  attachment  issued  to  vacate  or  modify  it,  or  to  increase 
the  plaintiff's  security.  Such  an  application  may  be  founded 
upon  the  papers  upon  which  the  warrant  was  granted;  or 
upon  proof,  by  affidavit,  on  the  part  of  the  defendant,  or 
upon  both.  If  it  is  founded  upon  proof  on  the  part  of  the 
defendant,  it  may  be  opposed  by  new  proof,  by  affidavit, 
upon  the  part  of  the  plaintiff,  tending  to  sustain  any  ground 
for  the  attachment,  recited  in  the  warrant,  but  no  other. 
The  court  may,  upon  the  return  of  the  summons,  or  at  any 
other  time  to  which  the  action  is  adjourned,  vacate  the  war- 
rant of  attachment  upon,  his  own  motion,  if  he  deems  the 
papers  upon  which  it  was  granted  insufficient  to  authorize  it. 

Notes  to  section  89. 

This  section  is  substantially  the  same  as  section  1327  of  the  Con- 
solidation Act  (Laws  1882,  chap.  410),  and  of  section  2916  of  the  Code 
of  Civil  Procedure,  relating  to  justices'  courts,  with  the  exception 
that  it  permits  the  application  to  be  also  made  before  the  return  day 
named  in  the  summons.  See  the  next  section  (90)  and  §  2917,  Code 
Civ.  Proc. 

See  also  notes  to  §  68,  citing  authorities  on  motion  to  vacate  an  order 
of  arrest  which  apply  as  well  to  vacating  a  warrant  of  attachment,  and 
notes  to  §  74,  subd.  1. 

Additional  affidavits. —  Additional  affidavits  will  be  allowed  when, 
since  the  original  application  was  made,  it  appears  there  has  been  a 
change  in  the  condition  of  the  parties,  such  as  a  general  assignment  by 
the  defendant  for  the  benefit  of  creditors.  Dickerson  v.  Benhani,  20 
How.  Pr.  343,  affg.  s.  c,  19  How.  Pr.  410;  s.  c,  12  Abb.  Pr.  158,  10 
Abb.  Pr.  390. 

Where  the  defendant  moves  to  vacate  on  affidavits,  the  plaintiff  may 
use  additional  affidavits,  but  only  to  contradict,  answer,  or  explain  those 
of  the  defendants,  and  not  to  remedy  defects  in  the  original  papers. 
Yates  v.  North,  44  N.  Y.  71. 


§89.  Attachment.  203 

Where  a  motion  to  set  aside  an  attachment,  issued  upon  an  affidavit 
only,  is  made  upon  the  affidavit  upon  which  it  was  granted,  and  also 
upon  the  complaint,  the  plaintiff  is  entitled,  upon  the  hearing,  to  read 
additional  affidavits  in  support  of  the  attachment.  Ives  v.  Holden,  14 
Hun.  402. 

When  the  motion  is  founded  solely  on  the  affidavits  upon  which  the 
attachment  was  granted,  no  additional  affidavits  in  support  of  the 
original  application  can  be  allowed.     /////  v.  Bond,  22  How.  Pr.  272. 

The  warrant  cannot  be  sustained  by  the  submission,  on  the  motion 
to  vacate,  of  additional  affidavits  which  might  have  supported  the 
attachment,  on  other  grounds  than  that  on  which  it  was  granted,  al- 
though in  support  of  the  motion,  affidavits  other  than  those  on  which 
the  warrant  issued  are  presented  by  the  moving  party.  Acker,  etc.  v. 
Eaynisch,  25  Misc.  Rep.  415,  54  X.  Y.  Supp.  937;  affd.  in  2b  Misc.  Rep. 
836. 

Affidavit,  insufficiency  of  (see  also  notes  to  §  74,  subd.  1). —  It  must 
not  be  upon  information  and  belief,  without  giving  the  sources  and 
grounds  thereof.  The  facts  to  authorize  the  attachment  must  appear 
by  affidavit.  Hill  v.  Bond,  22  How.  Pr.  272;  O'Reilly  v.  Fred,  37  How. 
Pr.  272;  Brewer  v.  Tucker,  13  Abb.  76;  Donnelly  v.  Corbett,  7  N.  Y. 
500 ;    Greene  v.   Gonzales,  2  Daly,  4P2. 

Upon  a  motion  to  vacate  an  attachment,  the  question  is  not  one  of 
jurisdiction,  but  whether,  upon  the  facts  presented,  the  attachment  ought 
to  issue;  and  this  is  so  when  the  motion  is  founded  upon  the  alleged 
insufficiency  of  the  affidavits  upon  which  the  order  for  attachment  was 
granted.     Allen  v.  Meyer,  73  X.  Y.  1. 

Cause  of  action. —  The  affidavit  on  which  an  attachment  is  granted 
must  show  that  a  cause  of  action  exists  in  favor  of  plaintiri.  It  must 
state  the  facts  out  of  which  the  cause  of  action  arose.  A  mere  recital 
of  facts  without  a  direct  statement  of  their  existence  is  insufficient. 
Man  ton  v.  Poole,  4  Hun,  638. 

Where  the  affidavit  omits  to  state  the  ground1  of  action,  the  omission 
affects  the  jurisdiction,  and  cannot  be  remedied  by  amendment.  The 
attachment  must  be  set  aside.     Zeregal  v.  Benoist,  33  How.  Pr.  120. 

To  authorize  an  attachment  it  is  not  sufficient  to  state  the  amount  of 
plaintiffs  claim,  and  the  legal  conclusion  that  he  has  a  just  cause  of 
action :  the  grounds  or  the  subject-matter  of  the  claim  must  be  set 
forth.  The  omission  of  this  statement  cannot  be  supplied  on  a  motion 
to  discharge  the  attachment.     Richter  v.  Wise,  6  N.  Y.  Super.  70. 

A  warrant  of  attachment  cannot  be  set  aside  on  motion,  where  the 
facts  stated  in  the  affidavit  on  which  the  warrant  was  granted  have  a 
legal  tendency  to  show  that  the  statutory  ground  for  the  attachment 
exi*ts,  and  are  such  as  fairly  called  for  the  exercise  of  the  judgment  of 
the  magistrate  who  granted  the  warrant,  as  to  their  sufficiency.  Allen 
v.  Meyer,  7  Daly.  229. 


204  Attachment.  §89. 

Complaint. —  An  order  vacating  an  attachment  on  the  merits  of  the 
action  will  be  reversed,  unless  the  complaint  is  so  defective  that  plain- 
tiff cannot  recover.  Goodyear  v.  Commercial  Fire  Ins.  Co.,  59  App. 
Div.  611.     See  also  Fox  v.  Mays,  46  App.  Div.  1,  61  N.  Y.  Supp.  295. 

Copy  papers  served. —  The  justice  may  dismiss  the  action  and  vacate 
an  attachment  on  the  return  day  on  motion  of  the  defendant,  and  may 
do  so  upon  the  copies  served  where  the  original  summons  and  attach- 
ment have  not  been  returned.     Risk  v.  Uffalman,  7  Misc.  Rep.  133. 

Counter-affidavits. —  On  a  motion  to  vacate  an  attachment  founded 
upon  affidavits  on  the  part  of  the  defendant,  it  is  competent  for  the 
plaintiff  to  read  counter-affidavits  in  opposition.  Hill  v.  Bond,  22  How. 
Pr.  272. 

Attachment,  erroneous;  no  ground  to  vacate  proper  judgment. —  Under 
the  provisions  of  the  Code  of  Civil  Procedure,  error  of  the  justice  in 
refusing  to  set  aside  a  warrant  of  attachment  issued  against  the  prop- 
erty of  a  defendant  is  not  ground  for  reversal  of  a  judgment  against 
the  defendant,  subsequently  rendered  in  the  action,  upon  an  appeal 
from  such  judgment  to  this  court,  there  being  no  ground  to  reverse  the 
judgment,  however  erroneous  it  was  to  refuse  to  vacate  the  attach- 
ment. Rosenthal  v.  Grouse,  12  Daly,  529;  s.  c,  1  How.  N.  S.  447,  7  Civ. 
Proc.  Rep.  135;  ttchnauffer  v.  Catterbury,  32  N.  Y.  St.  Rep.  694;  s.  c, 
10  N.  Y.  Supp.  543;  Bump  v.  Daheny,  36  N.  Y.  St.  Rep.  114. 

Where  an  attachment  is  issued  against  the  defendant's  property, 
error  in  issuing  the  attachment,  or  in  refusing  to  set  it  aside  on  motion, 
is  not  ground  for  reversal  of  a  judgment  for  plaintiff  for  the  amount 
sued  for,  with  interest  and  costs,  not  including  the  marshal's  fees  on 
the  attachment,     Hchnauffer  v.  Catterbury,  16  Daly,  353. 

Fictitious  name. —  This  court  has  no  authority,  and  never  had,  to 
grant  attachments  against  persons  by  fictitious  names.  McCabe  v.  Doe, 
2  E.  D.  Smith,  64;  Gardner  v.  McKraft,  Daily  Reg.,  Feb.  23,  i877; 
Davenport  v.  Doady,  3  Abb.  Pr.  409;  Solinger  v.  Patrick,  7  Daly,  408. 
These  attachments  were  therefore  absolutely  void,  together  with  all 
proceedings  under  them,  and  as  this  appeared  upon  the  face  of  them, 
they  afforded  no  protection  to  the  marshal.  Patrick  v.  Solinger,  9  Daly, 
151. 

Intent. — Where  the  allegations  in  the  affidavit  are  as  consistent  with 
honesty  of  intent  on  the  part  of  defendant  as  with  a  dishonest  one,  the 
attachment  is  properly  vacated.     Bernhard  v.  Cohen,  27  Misc.  Rep.  363. 

Irregularities. —  An  order  to  show  cause  why  an  attachment  should 
not  be  vacated  should  specify  the  irregularities  complained  of.  Wee- 
hawken  Wharf  Co.  v.  Knickerbocker  Coal  Co.,  22  Misc.  Rep.  559,  49 
N.  Y.  Supp.  1001.  But  see  Andrews  v.  Scofield,  27  App.  Div.  90,  50  N. 
Y.  Supp.  132. 

Merits  of  action. —  On  motion  to  set  aside  the  attachment,  court  will 
not  try  the  merits  of  the  action.     Bank  of  Commerce  v.  Rutland,  etc., 


§  89.  Attachment.  205 

R.  R.  Co.,  10  How.  1,  6;  Romeo  v.  Garofalo,  25  App.  Div.  191,  49 
N.  Y.  Supp.  114;  Peck  v.  Brooks,  31  Misc.  Rep.  48,  64  N.  Y.  Supp.  546; 
Thorn  v.  Alvord,  32  Misc.  Rep.  456. 

Mistake  in  the  warrant  as  to  the  nature  of  the  cause  of  action  is  not 
fatal  to  the  validity  of  the  attachment  though  it  must  state  the  ground 
of  the  attachment.      Fox  v.  Mays,  46  App.  Div.  1,  61  N.  Y.  Supp.  295. 

Motion,  when  it  may  be  made. —  It  is  not  necessary  that  a  motion 
to  vacate  an  attachment  should  be  made  before  judgment;  and  an 
order  of  court  granting  a  motion  to  open  a  default,  but  allowing  the 
judgment  entered  to  stand  as  security,  does  not  preclude  the  defendant 
from  afterward  moving  to  vacate  judgment.  So  held,  where  the  objec- 
tion to  the  attachment  went  to  the  jurisdiction.  Sweezy  v.  Bartlett,  3 
Abb.  Pr.  N.  S.  444. 

Nonresident. —  It  is  good  ground  for  vacating  an  attachment,  issued 
against  an  alleged  nonresident,  and  absconding  defendant,  that  his  ab- 
sence from  his  place  of  abode  was  open  and  notorious;  that  he  made  no 
efforts  to  conceal  the  same;  that  his  conduct  was  not  designed  to  place 
any  one  on  a  false  scent,  or  to  evade  service  of  process,  and  that  he 
omitted  nothing  which  he  was  legally  bound  to  do,  to  enable  the  plain- 
tiff to  find  him.  The  mere  failure  of  a  plaintiff  to  learn  the  where- 
abouts of  a  defendant  affords  no  evidence  of  culpable  conduct  on  his 
part.     Sweezy  v.  Bartlett,  3  Abb.   Pr.  N.  S.  444. 

Original  papers. —  On  a  motion  to  vacate  on  the  original  papers,  all 
the  allegations  therein,  as  well  as  fair  inferences  to  be  deduced  there- 
from, are  to  be  taken  as  true.  Reedy  Elevator  Co.  v.  American  Grocery 
Co.,  24  Misc.  Rep.  678,  53  N.  Y.  Supp.  989. 

Upon  a  motion  to  vacate  an  attachment  on  the  affidavits  on  which  it 
was  granted,  plaintiff,  who  obtained  it,  is  entitled  to  the  benefit  of  all 
legitimate  inferences  from  the  facts  shown.  Stewart  v.  Lyman,  62  App. 
Div.    182. 

Pleadings,  if  not  before  the  court  when  the  attachment  was  granted, 
are  not  to  be  regarded  by  the  court  on  the  motion  to  vacate  in  deter- 
mining the  sufficiency  of  the  affidavit.  Fox  v.  Mays,  46  App.  Div.  1, 
61  N.  Y.  295.  See  also  Goodyear  v.  Commercial  Ins.  Co.,  59  App.  Div. 
611. 

Second  application. —  Where  an  attachment  has  been  vacated  by  the 
court,  after  opposition  ana  argument  on  the  merits  of  the  application, 
another  application  for  the  attachment  on  substantially  tne  same  facts, 
whether  before  the  same  or  another  court,  will  not  be  entertained. 
The  defendant  is  not  to  be  continually  vexed  by  the  same  applica- 
tion; nor  are  the  same  or  different  tribunals  to  hear  and  decide  upon 
the  same  matters  more  than  once.  Schlemmer  v.  Myerstein,  19  How. 
Pr.  412. 

Defendant,  who  has  been  defeated  in  his  application  to  vacate  an 
attachment   on  the  papers  on  which  it  was  granted,  may  again  move 


200  Attachment.  ,,  90,  91. 

upon  affidavits  without  leave  of  the  court.  Hawkins  v.  Pakas,  41  App. 
Div.   395. 

Subsequent  attaching  creditors. —  In  the  absence  of  fraud  or  collusion, 
any  irregularity  in  the  issuing  of  an  attachment,  which  is  waived  by 
the  debtor,  cannot  be  taken  advantage  of  by  a  subsequent  attaching 
creditor.     Jacobs  v.  Hogan,  15  Hun,   197. 

Summons. —  An  attachment  will  not  be  vacated  because  no  summons 
in  the  action  accompanied  the  papers  on  which  it  was  granted,  and 
they  do  not  state  that  an  action  has  been  begun.  Maury  v.  American 
Motor  Co.,  25   Misc.  Rep.  657. 

§  90.  Effect  of  vacating  warrant. —  Vacating  the  warrant 
of  attachment  does  not  affect  the  jurisdiction  of  the  court 
to  hear  and  determine  the  action,  where  the  defendant  has 
appeared  generally  in  the  action;  or  whore  the  summons 
was  served  personally  upon  him,  or  where  judgment  may  be 
taken  against  him,  as  being  indebted  jointly  with  another 
defendant,  who  has  been  thus  summoned  or  has  thus  ap- 
peared. In  every  other  case  the  justice  who  vacates  a  war- 
rant of  attachment  against  the  property  of  a  defendant 
must  dismiss  the  action  as  to  him. 

Notes   to   section   90. 

This  section  is  the  same  as  section  1328  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  and  the  same  as  section  2917-  of  the  Code 
of  Civil  Procedure,  relative  to  justices'  courts. 

Provisional  remedy. —  An  attachment  is  usually  a  provisional  remedy, 
and  an  error  of  the  justice  in  regard  to  such  a  remedy  will  not  cause 
the  reversal  of  the  judgment,  if  the  action  is  properly  decided  on  the 
merits.  Rosenthal  v.  Grouse,  12  Daly,  529;  s.  c,  1  How.  N.  S.  447, 
7  Civ.  Proc.  Rep.   135;   Bump  v.  Dehany,  36  N.  Y.  St.  Rep.  114. 

Jurisdiction  depends  upon  the  service  of  the  summons  and  not  upon 
whether  a  provisional  remedy  is  vacated  or  not.  McNeary  v.  Chase, 
30  Hun,  491. 

§  91.  Judgment  where  property  has  been  attached. —  Where 
the  defendant  has  not  appeared,  and  the  summons  has  not 
been  personally  served  upon  him,  and  property  of  the  de- 
fendant has  been  duly  attached  by  virtue  of  a  warrant  which 
has  not  been  vacated,  the  court  must  proceed  to  hear  and 
determine  the  action;  but  in  an  action  subsequently  brought, 
the  judgment  is  only  presumptive  evidence  of  the  indebted- 


§  92.  Attachment.  207 

ness,  and  the  defendant  is  not  barred  from  any  counter- 
claim against  the  plaintiff.  The  execution,  issued  upon  a 
judgment  so  rendered,  must  require  the  marshal  to  satisfy 
it  out  of  the  property  so  attached,  without  containing  a 
direction  to  satisfy  it  out  of  any  other  property. 

Notes   to   section   91. 

This  section  is  the  same  as  section  1329  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  and  the  same  as  section  2918  of  the  Code 
of  Civil  Procedure,  relative  to  justices'  courts.     See  also  §  271. 

Personal  service  of  process. —  Under  the  act  establishing  regulations 
for  the  port  of  New  York  (Laws  1857,  chap.  071),  this  court  cannot 
acquire  jurisdiction  to  render  judgment  against  the  master  of  a  vessel 
for  a  penalty  imposed  by  the  act  merely  by  attachment  of  the  vessel, 
and  without  personal  service  of  process  on  the  master.  The  Board  of 
Comrs.  of  Pilots  v.  Dick,  5  Daly,  391. 

§  92.  Sections  applicable  as  to  undertaking',  et  cetera Sec- 
tions one  hundred  and  six  to  one  hundred  and  ten  of  this 
revision,  inclusive,  and  sections  one  hundred  and  twenty- 
seven  and  one  hundred  and  twenty-eight,  in  so  far  as  they 
relate  to  undertaking,  sureties  and  justification,  apply  to 
proceedings  under  this  title,  and  the  exceptions  to,  and 
examination  of,  sureties,  whether  on  undertaking,  or  bail, 
may  be  made  and  conducted  by  the  adverse  party,  as  pre- 
scribed therein. 

Notes   to   section   92. 

This   section  is  new.      See  also    §    70. 

Amendment  of  undertaking. —  See  notes  to  §  3  ("Removal"). 

Mistakes,  omissions,  defects,  and  irregularities,  and  general  rules  re- 
specting affidavits,  bonds,  and  undertakings. — Code  Civ.  Proc,  §§  728, 
729.  730,  and  810  to  816,  relating  to  affidavits  and  undertakings,  apply 
to  this  court  by  section  3347,  subdivision  6,  of  said  Code,  making  them 
applicable  to  all  courts. 

Note. —  There  are  no  sections  93  or  94. 


208  Replevin. 


ARTICLE  ITL 

Replevin. 
Section     95.  Replevin. 

96.  Affidavit  and  undertaking  by  plaintiff. 

97.  Affidavit  therefor,  before  commencement  of  action. 

98.  Where  several  chattels  are  to  be  replevied. 

99.  Plaintiffs  undertaking  for   replevin. 

100.  When  agent,  et  cetera,  may  make  affidavit  for  replevin 

or   return. 

101.  Requisition  of  justice. 

102.  How  executed. 

103.  How  executed  if  properly  concealed,  et  cetera. 

104.  Marshal  to  keep  in  possession;   when  and  how  to  deliver. 

105.  Return  to  requisition. 

106.  Defendant  when  to  except  to  sureties,  proceedings  there- 

upon. 

107.  Defendant   may   reclaim   chattel;    proceedings   thereupon. 

108.  Qualifications  of  sureties. 

109.  Justification. 

110.  Allowance  of  undertaking. 

111.  When  and  to  whom  marshal  to  deliver  chattel. 

112.  Penalty  for  wrong  delivery  by  marshal. 

113.  Claim  of  title  by  third  person:   proceedings  thereupon. 

114.  Action  against  a  marshal  on  claim. 

115.  Indemnity  to  marshal  against   such  action. 

116.  Answer  of  title  in  third  person 

117.  Defendant  may   demand  judgment  for   return  of  chattel. 

118.  For  delivery  of  property.     How  money  recovered  by  same 

judgment  may  be  collected. 

119.  Damages  when  chattel  injured,  et  cetera,  by  defendant. 

120.  Judgment  or  verdict;    what   to  state. 

121.  Judgment  or  verdict,  et  cetera,  for  part  of  several  chat- 

tels. 

122.  Damages,  how  ascertained  on  default. 

123.  Final  judgment,  et  cetera. 

124.  Execution,  contents  thereof. 

125.  Marshal's  power  to  take  chattel. 

126.  Action  on  undertaking,  when  maintainable. 

127.  Marshal's  return,  evidence  therein. 

128.  Injury,  et  cetera,  no  defence. 

129.  Proceeding  where  summons   not   personally   served. 

130.  When  action   not   affected  by  failure   to  replevy. 

131.  Judgment*  of  action  with  others. 


*  Should  be  "Joinder"  (see  §  131). 


§  95,  Subd.  1.  Replevin.  209 

§  95.  Action  to  recover  a  chattel. —  An  action  to  recover  a 
■chattel,  with  or  without  damages,  for  the  wrongful  taking, 
withholding,  or  detention  thereof,  may  be  brought  in  the 
municipal  court  of  the  city  of  New  York,  except : 

1.  Where  the  chattel  was  taken  by  virtue  of  a  warrant, 
against  the  plaintiff,  for  the  collection  of  a  tax,  assessment 
or  fine,  issued  in  pursuance  of  a  statute  of  the  state,  or  of 
the  United  States :  unless  the  taking  was,  or  the  detention 
is,  unlawful,  as  specified  in  section  ninety-seven  of  this  act. 

Notes   to  section   95. 

This  section  is  taken  from  section  1331  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  and  sections  1219  and  1690  to  1692  of  the  Code 
of  Civil  Procedure.  These  sections  of  the  Code  constitute  the  six  sub- 
divisions of  this  section  instead  of  separate  enactments,  as  contained 
in  said  Code. 

In  the  note  to  section  1331,  on  page  218  of  the  Fourth  Edition  of 
this  work,  we  said:  "  In  his  preliminary  note  to  chapter  XIV,  title  II, 
'Actions  Relating  to  Chattels,'  under  article  I,  'Action  to  Recover  a 
Chattel,'  Mr.  Throop,  one  of  the  commissioners  who  revised  the  stat- 
utes, states  that  '  Doubtless  the  profession  will  welcome  the  restoration 
to  the  statute-book  of  the  familiar  words,  "  replevy  "  and  "  replevin," 
after  their  banishment  therefrom  for  more  than  a  third  of  a  century;  ' 
and  yet,  for  the  sake  of  accuracy,  the  entire  chapter  is  devoted  not  to 
'  replevin,'  but  to  '  actions  to  recover  and  to  foreclose  a  lien  upon  a 
chattel.'  And  nowhere  in  the  Code  is  the  term  '  replevin  '  used  until 
chapter  XIX,  article  V,  is  reached,  which  applies  to  '  justices'  courts.'  " 

Article  III  of  title  III  of  this  act  is  headed  "  Replevin,"  while  section 
95  is  headed  "  Action  to  recover  a  chattel."  Section  55  speaks  of  a 
"  Requisition  to  replevy." 

The  commission  who  framed  the  present  act  under  Laws  1901,  chap. 
218,  and  reported  the  same  to  the  Legislature  under  their  note  to 
section  95,  use  the  word  "  Replevin."  It  is  not  for  us  to  reconcile 
this  apparent  mixture.  This  procedure  was  known  in  England  as  the 
"  Writ  of  Replevin,"  and  so  brought  over  from  the  mocher  country 
to  this  country.  For  a  history  of  the  remedy  by  replevin  in  England 
and  in  this  country,  the  student  will  be  both  instructed  and  enlight- 
ened by  reading  the  case  of  Manning  v.  Keenan,  73  N.  Y.  45. 

As  to  "  When  the  action  lies  "  and  "  Questions  of  jurisdiction,"  see 
§  1,  subd.  9. 

As  to  jury  fees  in  an  "Action  to  recover  a  chattel,"  where  defendant 
demands  a  jury  of  twelve  men,  see  §  234. 

Bailee  and  bailor;  tender. —  Where  a  bailee  refuses  to  deliver  the 
goods  to  the  bailor,  on  the  ground  that  the  latter  is  not  entitled  to 

14 


210  Replevin.  §  95,  Subd.  2. 

take  them,  averring  an  intention  to  contest  his  right  in  the  courts,  it 
is  not  necessary  for  the  bailor  to  tender  the  fees  due  for  the  storage 
of  the  goods,  before  commencing  an  action  for  the  recovery  thereof. 
Long  Island  Brewery  Co.  v.  Fitzpatrick,   18   Hun,  389. 

Where  the  plaintiff  claims  to  recover  on  the  ground  that  the  prop- 
erty was  only  leased,  whereas  the  defendant  claims  as  purchaser,  the 
plaintiff  must  not  only  tender  before  suit  repayment  of  the  money 
received,  but  must  keep  his  tender  good  by  a  deposit  of  the  money,  or 
an  offer  at  the  trial  to  pay  into  court.     Dodge  v.  Fearey,  19  Hun,  277. 

Complaint. —  The  complaint  in  a  claim  and  delivery  action  need  not 
be  in  any  specific  form;  the  only  requirement  in  reference  thereto  is 
the  general  one,  that  it  shall  contain  a  plain  and  concise  statement 
of  the  cause  of  action.     Western  R.  R.  Co.  v.  Bayne,  75  N.  Y.  1. 

As  to  what  is  sufficient  complaint,  see  Banfield  v.  Haeger,  45  N.  Y. 
Super.    (J.  &  S.)   428. 

As  to  what  is  necessary  to  be  shown  to  make  out  a  case  in  a  claim 
and  delivery  action,  see  Hammond  v.  Hchultze,  45  N.  Y.  Super.  (J.  & 
S.)    611. 

In  an  action  to  recover  a  chattel,  a  failure  to  allege  that  the  taking 
was  wrongful  is  not  fatally  defective,  if  the  facts  averred  clearly  show 
this  to  be  the  case.     Button  v.  Lusk,  19  Civ.  Proc.  Rep.  111. 

The  receipt  of  goods  by  means  of  a  sale  induced  by  fraud  is  tortious 
taking,  and  in  such  case  the  complaint  in  replevin  need  not  set  out 
the  facts  showing  that  their  detention  was  wrongful.  Cowing  v. 
Warner,  30  Misc.  Rep.  593,  affg.  29  Misc.  Rep.  593,  62  N.  Y.  Supp. 
797. 

Detention  after  the  trial  is  a  new  offense  constituting  a  new  cause  of 
action.  Corn  Exchange  Bank  v.  Blye,  56  Hun,  403,  32  N.  Y.  St. 
Rep.  78. 

Reversal  of  judgment. —  The  title  of  the  purchaser  on  execution  is* 
annulled  and  the  owner  entitled  to  recover  his  property  back  when  the 
judgment  in  the  action  in  which  the  attachment  issued  has  been  re- 
versed.    Reinmiller  v.  Skidmore,  7   Lans.   161. 

Sheriff. —  This  court  has  jurisdiction  of  actions  against  the  sheriff 
to  recover  chattels.     Price  v.   Grant,  15  Daly,  436. 

Taking  the  property  from  other  than  defendant. —  A  requisition  in  an 
action  for  the  claim  and  delivery  of  personal  property  only  authorizes 
the  taking  of  the  chattels  specified  from  the  defendant  named  in  the 
action  or  his  agent;  it  is  no  protection  when  he  takes  them  from  an- 
other, in  an  action  of  trespass  brought  by  the  latter.  Otis  v.  Williams, 
70  N.  Y.  208.     See  also  Bullis  v.  Montgomery,  50  N.  Y.  352. 

2.  Where  it  was  seized  by  virtue  of  an  execution,  or  a 
warrant  of  attachment,  against  the  property  of  the  plain- 


§  96.  Replevin.  211 

tiff,  unless  it  was  legally  exempt  from  such  seizure,  or  is 
unlawfully  detained,  as  specified  in  section  ninety-seven  of 
this  act. 

Notes   to  section  95,  subdivision  2. 

Legal  custody. —  In  a  replevin  proceeding  the  property  is  in  legal  cus- 
tody as  to  strangers  thereto,  so  that  it  cannot  be  reached  by  execution. 
First  Nat.  Bank  v.  Dunn,  97  N.  Y.  149,  revg.  29  Hun,  529. 

While  property  is  in  the  hands  of  the  sheriff,  under  a  warrant  of 
replevin,  it  cannot  be  levied  upon  by  virtue  of  an  execution  against 
the  defendant  in  the  replevin  action.  Tramain  v.  Mortimer,  28  N.  Y. 
St.  Rep.  548. 

So,  while  property  is  in  possession  of  the  property  clerk  of  the 
police  department  by  order  of  the  magistrate  pending  a  prosecution, 
it  is  in  the  custody  of  the  law,  and  the  owner's  right  of  possession 
cannot  be  enforced  while  the  circumstances  justify  a  retention  for 
purposes  of  police  justice.     Simpson  v.  St.  John,  93  N.  Y.  363. 

3.  Where  it  was  seized  by  virtue  of  an  execution,  or  a 
warrant  of  attachment,  against  the  property  of  a  person 
other  than  the  plaintiff,  and  at  the  time  of  the  commence- 
ment of  the  action  the  plaintiff  had  not  the  right  to  reduce 
it  into  his  possession. 

4.  Where  a  chattel  is  replevied  in  an  action  to  recover 
the  same,  and  a  final  judgment  awarding  the  possession 
thereof  to  the  defendant  is  rendered,  a  subsequent  action 
to  recover  the  same  chattel  cannot  be  maintained  by  the 
plaintiff,  for  the  same  cause  of  action.  But  the  judgment 
does  not  affect  his  right  to  maintain  an  action  to  recover 
damages,  for  taking  or  detaining  the  same  or  any  other 
chattel,  unless  it  was  rendered  against  him  upon  the  merits. 

5.  If  plaintiff's  title  be  by  transfer,  made  since  wrongful 
taking,  or  during  wrongful  detention,  no  action  can  be 
maintained  unless  the  person  from  or  through  whom  the 
plaintiff  derived  title  might  have  maintained  the  same,  had 
the  transfer  not  been  made. 

§96.  Affidavit  and  undertaking  by  plaintiff. —  The  plain- 
tiff may,  at  the  time  the  summons  is  issued,  but  not  after- 
wards, require  the  chattel  to  be  replevied  as  prescribed  in 
this  act.     For  that  purpose  he  must  deliver  to  the  court,  an 


212  Replevin.  §  97. 

affidavit  and  a  written  undertaking  as  herein  prescribed, 
which  must  be  tiled  with  the  clerk  of  the  court  in  the  dis- 
trict in  which  the  action  is  brought. 

Notes  to    section    96. 

This  section  is  tak<  n  from  section  1332  of  the  Consolidation  Act 
(Laws  1882.  chap.  410),  which  is  the  same  as  section  2920  of  the 
Code  of  Civil  Procedure,  relative  to  justices'  courts.  It  will  be  no- 
ticed that  the  affidavit  and  undertaking  must  be  filed  with  the  clerk. 

Affidavit. —  For  authorities  as  to  the  affidavit,  see  §  97. 

Allowance,  or  approval  of  undertaking. —  See  §  110. 

Amendments  to  undertakings. —  See  notes  to  §  3  ("Removals"). 

Exception  to,  and  justification  of,  sureties. —  See  §§  70,  100,  108,  109. 

Mistakes,  omissions,  defects,  and  irregularities;  and  general  regula- 
tions respecting  affidavits,  bonds,  and  undertakings. —  Code  Civ.  Proc, 
§§  728,  729,  730,  and  810  to  816,  relating  to  affidavits  and  undertak- 
ings, apply  to  this  court,  by  subdivision  6.  section  3347,  of  said  Code, 
making  them  applicable  to  all  courts. 

Undertaking. —  For  authorities  as  to  undertakings,  see  §§  99,  107,  and 
notes. 

§  97.  Affidavit  therefor,  before  commencement  of  action. — 
The  affidavit  prescribed  in  the  last  section,  must  particularly 
describe  the  chattel  to  be  replevied  and  must  contain  the 
following  allegations : 

1.  That  the  plaintiff  is  the"  owner  of  the  chattel,  or  is 
entitled  to  the  possession  thereof,  by  virtue  of  a  special 
property  therein;  the  facts  with  respect  to  which  must  be 
set  forth. 

2.  That  it  is  wrongfully  detained  by  the  defendant. 

3.  The  alleged  cause  of  the  detention  thereof,  according 
to  the  best  knowledge,  information,  and  belief  of  the  per- 
son making  the  affidavit. 

4.  That  it  has  not  been  taken  by  virtue  of  a  warrant, 
against  the  plaintiff,  for  the  collection  of  a  tax,  assessment 
or  fine,  issued  in  pursuance  of  a  statute  of  the  state,  or  of 
the  United  States;  or,  if  it  has  been  taken  under  color  of 
such  a  warrant,  either  that  the  taking  was  unlawful,  by 
reason  of  defects,  in  the  process,  or  other  causes  specified, 
or  that  the  detention  is  unlawful  by  reason  of  facts  speci- 
fied which  have  subsequently  occurred. 


§  97  Subds.  1-4.  Replevin.  213 

Notes  to  section  97  and  subdivisions  1,  2,  3  and  4. 

This  section  is  new,  and  is  taken  from  section  1G95  of  the  Code  of 
Civil  Procedure.     See  notes  to  §   95,  subd.  1,  and  also  §  96. 

Additional  or  supplemental  affidavit  may  be  allowed  when  the  original 
is  defective,  or  plaintiff  may  have  leave  to  amend  it.     Depew  v.  Leal, 

2  Abb.    131;    Spaulding    v.   Spaulding,    3    How.   297;    Dows   v.    Green, 

3  How.  377. 

Demand. —  As  to  necessity  of  demand,  see  Clark  v.  Meigs,  22  How. 
340.  13  Abb.  467,  revg.  21  How.  187;  Simser  v.  Cowan,  56  Barb.  395. 
See  also  Kaufman  v.  Klang,  16  Misc.  Rep.   379. 

Where  the  taking  was  not  wrongful,  and  the  action  is  based  on 
the  wrongful  detention  of  the  property,  or  in  the  detinet,  demand 
must  be  made  before  suit.  3  Abb.  Pr.  383,  13  How.  Pr.  219,  2  Abb. 
Pf.    167,   37   How.   Pr.    109,    1    Sweeney,   215. 

Where  the  plaintiff's  case  depends  upon  a  wrongful  detention  with- 
out a  wrongful  taking,  an  averment  in  the  complaint  of  a  demand  and 
refusal  is  necessary.  Bcofichl  v.  Whitelegge,  10  Abb.  Pr.  N.  S.  104; 
affd.,  Court  of  Appeals  (see  12  Abb.  Pr.  N.  S.  320,  and  49  N.  Y. 
259)  ;  Levin  v.  Russell,  42  N.  Y.  251,  explained  and  distinguished; 
Talcott  v.  Belding,  46  How.  419.  See  also  The  Hone  Seiving  Machine 
Co.   v.   Haiti,/,    7    Daly.    108. 

Demand  must  be  alleged  and  proved  in  order  to  maintain  replevin 
for  wrongful  detention  where  the  property  came  rightfully  into  de- 
fendant's possession.      Treat  v.  Hathorn,   3   Hun,   646. 

Proof  of  demand  before  service  of  the  papers  is  sufficient.  Irr  v. 
Hchroeder,  6  Civ.  Proc.  Rep.  253. 

Demand  and  refusal  is  the  usual  proof  of  conversion  where  defend- 
ant did  not  come  into  possession  wrongfully.  Rawley  v.  Broion,  18 
Hun,  456.  A  denial  of  title  amounts  to  conversion  when  given  in 
response  to  a  demand.     Nelson  v.  Neil,   12  Week.  Dig.   154. 

Unless  demand  is  proved,  a  failure  to  return  cans  in  which  milk 
lias  been  received  as  per  agreement  does  not  show  a  conversion. 
Riverson  v.   Kauffichl,   13   Hun,   387. 

Where  the  defendant  was  notified  that  the  property  belonged  to  the 
plaintiff,  before  he  took  it,  the  action  lies  without  a  demand  and  re- 
fusal.    Hallett  v.   Carter,   19  Hun,  629. 

A  wife  living  apart  from  her  husband  may,  after  demand  and  re- 
fusal, maintain  the  action  to  recover  her  personal  property  which 
remained  in  the  husband's  house  when  she  left  it.  Rowland  v.  Row- 
land, 20  Hun.  472. 

A  person  who  purchases,  in  good  faith,  goods  at  a  sheriff's  sale,  which 
are  in  the  possession  of  the  judgment  debtor,  is  not  liable  to  an  action 
for  the  recovery  thereof,  brought  by  the  real  owner,  until  demand  and 
refusal  to  deliver  them.     Raicley  v.  Brown,  18  Hun,  456. 


214  Replevin.  §  97,  Subds.  1-4. 

Id.;  when  not  necessary. —  Demand  for  the  return  of  the  property  is 
not  necessary  before  bringing  replevin  where  the  original  taking  was 
wrongful.  Schwabeland  v.  Holahan,  10  Misc.  Rep.  176;  s.  c,  62  N.  Y. 
St.  Rep.  518,  30  N.  Y.  Supp.  910. 

Defendant  being  a  warehouseman  to  whom  a  person  other  than 
the  owner,  who  nad  unlawfully  obtained  possession  of  a  piano,  had 
delivered  it  for  storage, —  Held,  that  the  owner  could  maintain  an 
action  for  it  without  a  previous  demand.  Milligan  v.  Brooklyn  Ware- 
house &  Storage  Co.,  34  Misc.  Rep.  55. 

And  an  attachment  is  a  protection  to  defendant  or  sheriff  when 
there  is  no  proof  of  a  demand  for  a  return  of  the  property,  after  the 
attachment  was  vacated.    Lux  v.  Davidson,  31  N.  Y.  St.  Rep.  346. 

A  person  who  purchases,  in  good  faith,  goods  at  a  sheriff's  sale, 
which  are  in  possession  of  the  judgment  debtor,  is  not  liable  to  an 
action  for  the  recovery  thereof,  brought  by  the  real  owner,  until  de- 
mand and  refusal  to  deliver  them.     Rawley  v.  Brown,  18  Hun,  456. 

Description  of  property  in  the  affidavit  should  be  plain  enough  so  that 
the  sheriff  to  whom  it  is  delivered  will  be  able  to  determine  from  it, 
with  some  degree  of  accuracy  and  intelligence,  what  he  is  required  to 
replevy.  Van  Dyke  v.  The  N.  Y.  State  Banking  Co.,  18  Misc.  Rep. 
661. 

It  is  insufficient  if  a  part  of  the  goods  are  merely  referred  to  by 
abbreviations  the  meaning  of  which  is  not  shown  by  anything  contained 
in  the  schedule  nor  in  the  affidavit,  or  by  letters  and  figures  which, 
read  by  themselves,  are  not  descriptive  at  all,  nor  referred  to  in  any 
part  of  the  schedule  or  affidavit  so  that  their  meaning  is  made  plain. 
National  E.  &  8.  Co.  v.  Kaplan,  53  App.  Div.  96,  65  N.  Y.  Supp.  732. 

Description  in  the  affidavit,  "  10,000  wool  pelts,  the  wool  taken 
therefrom,  and  the  skins  thereof  (otherwise  known  as  slats),  in  pickle 
or  lime,'' —  Held  sufficient  on  motion  to  set  aside  service  of  the  sum- 
mons and  the  taking  of  the  goods.  Marshal  v.  Friend,  33  Misc.  Rep. 
443,  68  N.  Y.   Supp.  502. 

Irregularity  in  the  affidavit  is  waived  by  general  appearance  or  by 
giving  an  undertaking  and  obtaining  a  return  of  the  property.  Wis. 
M.  d  T.  Ins.  Co.  v.  Hobbs,  22  How.  494;  Roberts  v.  Willard,  1  Civ. 
Proc.  Rep.   100;  Hyde  v.  Patterson,  1  Abb.  248. 

Mistakes,  omissions,  defects,  and  irregularities  in  affidavit,  and  amend- 
ment thereof.      See  notes  to   §    96. 

Objection  must  be  promptly  taken,  and  before  the  time  to  answer  has 
expired,  and  the  irregularity  must  be  specified  in  the  notice  of  mo- 
tion. Paddock  v.  Guyder,  29  N.  Y.  St.  Rep.  773;  s.  c,  8  N.  Y.  Supp. 
905;   Van  Dyke  v.  The  N.  Y.  State  Banking  Co.,  18  Misc.  Rep.   661. 

Ownership. —  An  affidavit  by  the  plaintiff  that  he  is  the  "  owner  "  of 
the  property  is  sufficient  without  setting  out  the  facts  proving,  or  the 
manner  of,  such  ownership.  Burns  v.  Bobbins,  1  Code  Rep.  52;  Van- 
denburgh  v.  Van  Valkenburgh,  8  Barb.  217. 


§  97,  Subds.  5,  6.  Replevin.  215 

Right  of  possession. —  The  facts  must  be  so  shown  as  to  make  out  a 
special  property  and  right  of  possession.  If  it  appears  that  the  evi- 
dence of  the  facts  rests  in  a  writing,  that  must  be  set  forth.  Depew 
v.  Leal,  2  Abb.  Pr.   136. 

The  complaint  must  show  a  right  of  property  and  of  possession  in 
plaintiff.  An  allegation  of  wrongful  detention  is  not  sufficient.  The 
latter  is  a  conclusion  of  law,  the  former  the  facts  upon  which  it  is 
based.  The  facts  must  be  pleaded,  and  without  them  the  conclusion 
of  law  is  an  immaterial  statement.  An  omission  to  allege  these  facts 
in  the  complaint  is  not  cured  by  an  averment  in  the  answer  denying 
ownership  in  the  plaintiff.  Scofield  v.  Whitelegge,  10  Abb.  Pr.  N.  S. 
104;  affd.,  12  Abb.  Pr.  N.  S.  320,  and  49  N.  Y.  259. 

Setting  aside  the  affidavit. —  This  may  be  done  if  it  is  untrue. 
Niagara  E.  Co.  v.  McNamara,  1  Sheld.  360;  affd.,  2  Hun,  416,  4 
T.  &  C.  604;  O'Reiley  v.  Good,  42  Barb.  521,  18  Abb.  106;  Stockwell  v. 
Teitch,  38  Barb.  650,  15  Abb.  412. 

5.  That  it  has  not  been  seized  by  virtue  of  an  execution 
or  warrant  of  attachment,  against  the  property  of  the  plain- 
tiff, or  of  any  person  from  or  through  whom  the  plaintiff 
has  derived  title  to  the  chattel,  since  the  seizure  thereof; 
or,  if  it  has  been  so  seized,  that  it  was  exempt  from  the  seiz- 
ure, by  reason  of  facts  specified,  or  that  its  detention  is 
unlawful,  by  reason  of  facts  specified  which  have  subse- 
quently occurred. 

Notes  to  section  97,   subdivision   5. 

Exemption. —  The  affidavit  must  state  the  facts  bringing  the  property 
within  the  st:  tutory  exemption.  It  is  sufficiently  "  shown  "  by  "  an 
allegation"  that  the  property  is  so  exempt;  but  mere  belief  that  the 
property  is  so  exempt  is  insufficient,  unless  it  be  added  that  such  belief 
is  founded  on  a  knowledge  of  the  law  or  the  advice  of  counsel  cognizant 
of  all  the  facts  of  the  case.  Spalding  v.  Spalding,  3  How.  Pr.  297, 
1  Code  Rep.  64;  Roberts  v.  Willard,  1  Code  Rep.  100. 

6.  Its  actual  value. 

Notes  to  section  97,  subdivision  6. 

Value. —  The  value  must  be  stated  in  the  affidavit,  and  in  its  absence, 
or  where  it  states  the  value  of  the  chattels  over  the  jurisdictional 
amount,  the  justice  does  not  acquire  jurisdiction.  In  the  latter  case 
the  affidavit  cannot  be  amended  so  as  to  acquire  jurisdiction.  Jaynes 
v.  Jaynes,  S  Civ.  Proc.  Rep.  99 ;  Irr  v.  Schroeder,  6  Civ.  Proc.  Rep.  253. 


216  Replevin.  §§  98,  99. 

§  98.  Where  several  chattels  are  to  be  replevied. —  Where 
the  affidavit  describes  two  or  more  chattels  of  the  same 
kind,  it  must  state  the  number  thereof,  and  where  it  de- 
scribes a  chattel  in  bulk,  it  must  state  the  weight,  measure- 
ment, or  other  quantity.  Where  it  describes  two  or  more 
chattels,  to  be  replevied,  it  may,  at  the  election  of  the  plain- 
tiff, state  the  aggregate  value  of  all,  or  separately  the  value 
of  any  chattel  or  of  any  class  of  chattels,  and  the  aggregate 
value  of  the  remainder,  if  any.  Where  it  states  separately 
the  value  of  one  or  more  chattels  or  classes  of  chattels,  the 
defendant  may  require,  as  prescribed  in  the  following  pro- 
visions of  this  article,  the  return  of  any  or  all  of  the  chat- 
tels or  classes  of  chattels,  the  value  of  which  is  thus  stated, 
or  of  the  portion  thereof  which  has  been  replevied.  If  he 
procures  such  a  return,  the  remainder  must  be  delivered  to 
the  plaintiff,  except  as  is  otherwise  prescribed  in  this  article. 

Note  to  section  98. 

This  section  is  new  and  the  same  as  section  1697  of  the  Code  of 
Civil  Procedure,  which  is  explanatory  of  section  1695  of  said  Code. 
These  two  sections  of  the  Code  were  referred  to  in  section  1332  of 
the  Consolidation  Act    (Laws  1882,  chap.  410). 

§  99.  Plaintiff's  undertaking1  for  replevin. —  The  undertak- 
ing must  be  executed  by  at  least  two  sureties  or  by  a  fidelity 
or  surety  company,  expressly  authorized  by  law  to  execute 
an  undertaking,  which  must  be  approved  by  the  court.  It 
must  be  to  the  effect  that  the  sureties  are  bound  in  a  speci- 
fied sum  not  less  than  twice  the  value  of  the  chattel,  as  stated 
in  the  affidavit,  for  the  prosecution  of  the  action,  for  the 
return  of  the  chattel  to  the  defendant,  if  possession  thereof 
is  adjudged  to  him,  or  if  the  action  abates,  or  is  discontin- 
ued, before  the  chattel  is  returned  to  the  defendant;  and 
for  the  payment  to  the  defendant  of  any  sum,  which  the 
judgment  awards  to  him  against  the  plaintiff. 

Notes  to  section  99. 

This  section  is  new  and  is  substantially  the  same  as  section  1699  of 
the  Code  of  Civil  Procedure,  with  the  addition  of  permitting  a  fidelity 
or  surety  company  to  execute  the  undertaking. 


§  100.  Replevin.  217 

Additional  undertaking. —  The  court  has  no  power  to  require  an  ad- 
ditional undertaking  where  the  value  stated  in  plaintiff's  affidavit  is 
claimed  to  be  less  than  the  true  value.  N.  S.  L.  &  T.  Co.  v.  Bussey,  53 
Hun,  516;  De  Regine  v.  Lewis,  3  Robt.  708. 

And  except  the  responsibility  of  the  sheriff,  defendant  is  entirely 
without  remedy  if  the  sheriff  has  taken  sham  security.  Manley  v. 
Patterson,  3  Uode  Rep.  89. 

Amendment  of  undertaking. —  See  notes  to  §  3   ("Removal"). 

Defective  undertaking. —  A  defective  undertaking  may  be  cured  upon 
exceptions.  De  Regine  v.  Leicis,  3  Robt.  708.  Or,  it  seems,  the  court 
will  allow  a  new  one  nunc  pro  tunc.  Decker  v.  Judson,  10  N.  Y.  439, 
443;  Newland  v.  Willetts,  1  Barb.  20. 

And  the  undertaking  will  not  be  vitiated  by  an  error  in  the  recital 
of  the  date  of  the  affidavit.     Hyde  v.  Patterson,  1  Abb.  248. 

Exception  to  and  justification  of  sureties. —  By  section  70  of  this  act 
sections  106  to  110  and  sections  127  and  128,  relating  to  undertakings, 
sureties,  and  justification,  are  made  applicable. 

Mistakes,  omissions,  and  irregularities  in  the  undertaking  which  may 
be  corrected.     See  notes  to  §  1,  subd.  3,  and  §  96. 

§  100.  When  agent,  et  cetera,  may  make  affidavit  for  re- 
plevin or  return. —  The  affidavit  to  be  delivered  to  the  court, 
in  behalf  of  the  plaintiff,  with  a  requisition  to  replevy  a 
chattel,  may  be  made  by  the  plaintiff's  agent  or  attorney, 
if  the  material  facts  are  within  his  personal  knowledge;  or 
if  the  plaintiff  is  not  within  the  city  of  New  York  where 
the  attorney  resides  or  has  his  office,  or  is  not  capable  of 
making  the  affidavit.  The  affidavit  to  be  delivered  to  the 
court,  either  in  behalf  of  the  defendant,  with  a  notice  that 
he  requires  the  return  of  the  chattel,  or  in  behalf  of  a  per- 
son not  a  party,  who  makes  a  claim  as  prescribed  in  section 
one  hundred  and  thirteen  of  this  act,  may  be  made  by  an 
agent  or  attorney,  if  the  material  facts  are  within  his  per- 
sonal knowledge,  or  if  the  defendant  or  claimant  as  the 
case  may  be,  is  not  within  the  city  of  New  York,  and  capable 
of  making  the  affidavit.  When  the  affidavit  is  made  by  an 
attorney  or  agent,  he  must  state  therein  what  allegations, 
if  any,  are  made  upon  his  information  and  belief;  and  he 
must  set  forth  therein  the  grounds  of  his  belief,  as  to  all 
matters  not  stated  upon  his  knowledge,  and  the  reason  why 
the  affidavit  is  not  made  by  the  party  or  the  claimant. 


218  Keplevin.  §§  101,  102. 

Note  to  section  ioo. 

This  section  i9  new  and  is  substantially  the  same  as  section  1712 
of  the  Code  of  Civil  Procedure,  except  that  it  has  been  made  to  apply 
to  this  court,  and  the  word  "  city  "  is  used  in  the  place  of  the  word 
"county."     See  notes  to  §§  95,  96,  97. 


§  101.  Requisition  of  justice. —  Upon  receiving  the  affi- 
davit and  undertaking,  the  justice  must  indorse  upon  or  at- 
tach to  the  affidavit  a  written  requisition,  subscribed  by  him, 
requiring  the  marshal  to  whom  the  summons  is  delivered 
to  replevy  the  property  described  in  the  affidavit,  on  or  be- 
fore a  day  specified  in  the  requisition,  which  must  be  at 
least  six  days  before  the  return  day  of  the  summons.  The 
affidavit,  undertaking  and  requisition  must  be  delivered  to 
the  marshal  with  the  summons. 

Note  to  section  xoi. 

This  section  is  taken  from  section  1333  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  which  was  taken  from  section  2921  of  the 
Code  of  Civil  Procedure,  appertaining  to  a  justice's  court,  with  the 
exception  that  the  words  "  except  in  the  case  of  a  nonresident  de- 
fendant "  are  stricken  out. 

§  102.  How  executed.—  If  any  chattel  described  in  the 
affidavit  is  found  in  the  possession  of  the  defendant,  or  of 
his  agent,  the  marshal  to  whom  the  summons,  affidavit  and 
requisition,  together  with  a  copy  of  the  undertaking  are 
delivered,  after  the  undertaking  and  requisition  have  been 
approved  by  the  court,  as  prescribed  in  the  foregoing  sec- 
tions of  this  chapter,  must  forthwith  replevy  it  by  taking  it 
into  his  possession.  He  must  thereupon  without  delay 
serve  upon  the  defendant  a  copy  of  the  summons,  affidavit, 
requisition  and  undertaking  by  delivering  the  same  to  him 
personally,  if  he  can  be  found  within  the  city  of  New  York, 
or  if  he  cannot  be  so  found,  to  his  agent,  if  any,  from  whose 
possession  the  chattel  is  taken;  or  if  neither  can  be  found 
within  the  city  of  New  York,  by  leaving  a  copy  at  the  usual 
place  of  abode  of  either,  with  a  person  of  suitable  age  and 
discretion. 


§§  103,  104.  Replevin.  219 

Notes  to  section  ioa. 

This  section  is  taken  from  section  1334  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  which  is  substantially  the  same  as  section 
2922  of  the  Code  of  Civil  Procedure,  appertaining  to  justices'  courts. 

Compensation  of  marshal  are  his  lawful  fees  and  necessary  expenses 
for  taking  the  property  and  keeping  it,  as  taxed  "by. the  court  out  of 
which  the  proceeding  issued."  See  §  104  of  this  act.  Formerly,  under 
section  1711,  of  the  Consolidation  Act,  the  compensation  was  left 
to  the  discretion  of  the  justice.  Stewart  v.  Fidelity  Loan  Assn.,  19 
Misc.  Rep.  49. 

Owner. —  A  requisition  for  the  claim  and  delivery  of  personal  property 
only  authorizes  the  taking  of  the  chattels  from  the  defendant  named 
in  the  action,  or  his  agent.  It  is  no  protection  when  he  takes  them 
from  another.  The  fact  that  the  plaintiff  is  a  marrfed  woman  and 
that  defendant  is  her  husband  and  agent  does  not  affect  the  legal 
status  of  such  owner.  Otis  V.  Williams,  70  N.  Y.  208.  See  also  Hess 
v.  Sprague,  13  Week.  Dig.  164;  Deutsch  v.  Reilly,  8  Daly,  132;  King 
v.  Oser,  4  Duer,  433. 

§  103.  How  executed  if  property  concealed,  et  cetera If 

any  chattel,  described  in  the  affidavit,  is  secured  or  con- 
cealed in  a  building  or  inclosure,  the  marshal  must  publicly 
demand  its  delivery.  If  it  is  not  delivered,  pursuant  to  the 
demand,  he  must  cause  the  building  or  inclosure  to  be  broken 
open,  and  must  take  the  chattel  Into  his  possession. 

Notes  to  section  103. 

This  section  is  the  same  as  section  1701  of  the  Code  of  Civil  Pro- 
cedure, with  the  exception  of  the  word  "  sheriff,"  for  which  the  word 
"  marshal  "  has  been  substituted. 

Power  of  marshal. —  A  constable  has  the  same  power  under  this  section 
as  the  sheriff,  and  after  knocking  at  a  house  and  calling  the  name  of 
defendant,  he  may  force  an  entrance,  and  finding  no  one  inside  need  not 
read  aloud  the  list  of  articles.  Howe  v.  Oyer,  50  Hun,  559.  See  also 
§  304. 

§  104.  Marshal  to  keep  in  possession;  when  and  how  to 
deliver. —  A  marshal  who  has  replevied  a  chattel,  must  re- 
tain it  in  his  possession,  keeping  it  in  a  secure  place,  until 
the  person  who  is  entitled  to  the  possession  thereof,  is  ascer- 
tained, as  prescribed  in  this  title.  He  must  then  deliver  it 
to  that  person  upon  request  and  payment  of  his  lawful  fees, 


220  Replevin.  §  105. 

and  necessarv  expenses  for  taking  and  keeping  it,  as  taxed 
by  the  court,  out  of  which  the  proceedings  issued. 

Notes  to  section  104. 

The  first  part  of  this  section  is  taken  from  section  1702  of  the  Code 
of  Civil  Procedure,  vith  the  exception  of  the  word  "  sheriff,"  for 
which  the  word  "marshal"  lias  been  substituted,  and  the  provision 
as  to  the  marshal's  fees  and  expenses  to  be  taxed  by  the  court,  which 
has  been  added,  is  taken  from  section  1711  of  the  Consolidation  Act 
(Laws  1882,  chap.  410).  The  words  in  the  latter  provision,  "as 
taxed  by  the  court  out  of  which  the  proceedings  issued,"  probably 
means  as  taxed  by  the  justice  holding  court  in  the  district  in  which 
the  action  is  brought,  as  there  is  only  one  court,  and  therefore  the 
words  after  the  word  "  court  "  are  unnecessary  and  may  be  regarded 
as  surplusage.  See  also  Stewart  v.  Fidelity  Loan  Assn..  19  Misc.  Rep. 
49.     See  also  §  304. 

Care  of  the  property. —  It  is  not  sufficient  that  the  sheriff  use  ordinary 
diligence  in  the  care  of  the  property;  he  must  preserve  it  safe.  Moore 
v.  Westervelt,  21  X.  Y.  103;  s.  c,  27  N.  Y.  239:  Edwards  on  Bail- 
ments, 59. 

The  officer  is  primarily  bound  by  his  process  to  keep  the  property,  or 
to  deliver  it  to  the  plaintiff;  the  service  of  affidavit  and  notice  of 
claim  suspends  that  obligation,  and  releases  him  from  it  unless  in- 
demnity is  given;  when  given,  the  obligation  again  attaches,  and  the 
claim  of  the  person  entitled  to  the  property  is  valid,  the  officer  being 
required  to  rely  on  the  indemnity.     Manning  v.  Keenan,  73  X.  Y.  45. 

The  plaintiff  does  not  release  the  sheriff  from  his  liability  by  re- 
ceiving property  in  its  damaged  condition,  although  damaged  through 
his  negligence.  Moore  v.  Westervelt,  supra.  And  see  First  National 
Bank  v.  Dunn,  29  Hun,  529;  s.  c,  97  X.  Y.  149. 

§105.  Return  to  requisition. —  The  marshal  must,  on  or 
before  the  return  day  of  the  summons,  make  a  return  to 
the  requisition,  under  his  hand,  stating  all  his  proceedings 
thereupon;  and  file  it,  with  the  affidavit,  undertaking,  and 
requisition,  with  the  clerk  in  the  district  in  which  the  action 
is  brought.  The  return  must  state  the  manner  in  which 
the  summons,  affidavit,  requisition  and  undertaking  were 
served;  and,  if  they  were  served  otherwise  than  by  deliver- 
ing the  requisite  copies  to  the  defendant  personally,  the 
reason  therefor  and  the  name  of  the  person  to  whom  the 
copies  were  delivered,  unless  his  name  is  unknown  to  the 


§106.  Replevin.  221 

marshal,  in  which  case  the  return  must  describe  him  so  as 
to  identify  him,  as  nearly  as  may  be. 

Note  to  section  105. 

This  section  is  taken  from  section  1335  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  which  was  substantially  the  same  as  section 
2923  of  the  Code  of  Civil  Procedure,  relating  to  justices'  courts.  The 
word  "  undertaking  "  has  been  included  in  this  section. 

§  106.  Defendant-  when  to  except  to  sureties;  proceedings 
thereupon. —  At  any  time  after  the  chattel  has  been  re- 
plevied, and  at  least  two  days  before  the  return  day  of  the 
summons,  the  defendant,  unless  he  requires  a  return  of  the 
chattel,  may  serve  upon  the  plaintiff,  or  upon  the  marshal, 
a  written  notice  that  he  excepts  to  the  plaintiff's  sureties, 
otherwise  he  is  deemed  to  have  waived  all  objections  to 
them.  If  such  a  notice  is  served,  the  sureties  must  justify 
upon  the  return  of  the  summons,  or  the  plaintiff  must  then 
give  new  undertaking  to  the  same  effect  as  the  original 
undertaking,  with  other  sureties,  who  must  then  appear  and 
justify  before  the  court. 

Notes  to  section  106. 

This  section  is  taken  from  section  1336  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  which  was  the  same  as  section  2924  of  the 
Code  of  Civil  Procedure,  relating  to  justices'  courts.  The  nonresident 
portion  is  stricken  out. 

See  §§  70  and  92,  making  this  section  to  §§  110  and  127  and  128 
applicable. 

Failure  to  justify. —  Where  defendant  in  replevin  duly  excepts  to  the 
sufficiency  of  plaintiff's  sureties,  they  must  justify  upon  the  return  of 
the  summons,  and  their  mere  presence  in  court  is  not  sufficient,  and  if 
plaintiff  neglects  to  procure  the  justification,  defendant,  unless  he  con- 
sents to  an  adjournment  of  the  justification,  is  entitled  to  the  immediate 
return  of  the  property  taken  by  the  marshal,  in  default  of  which  the 
marshal  becomes  personally  liable  therefor.  Koerkle  v.  Pangburn,  30 
Misc.  Rep.  770. 

Effect  of  exception. —  By  excepting  to  plaintiff's  sureties  the  defendant 
waives  his  right  to  a  return,  although  they  fail  to  justify.  Cullen  v. 
Miller,  5  Abb.  N.  C.  282.  See  also  Hofheimer  v.  Campbell,  59  N.  Y. 
2G9. 


222  Replevin.  §  107. 

This  latter  decision  is  apparently  overruled  by  section  1706  of  the 
Code  of  Civil  Procedure.     See  however  §  107  of  this  act. 

When  chattels  to  be  returned. —  Where  defendant  excepts  to  the  suffi- 
ciency of  plaintiff's  sureties  in  replevin,  the  plaintiff  must  either  pro- 
cure a  satisfactory  justification  of  such  sureties  or  furnish  another 
undertaking  to  the  same  effect  as  the  original,  the  sureties  in  which 
must  appear  and  justify  before  the  justice.  If  neither  of  these  things 
are  done,  it  is  the  duty  of  the  constable  who  seized  the  chattel  to 
return  it  to  the  defendant.     Goff  v.  Bliss,  12  Civ.  Proc.  Rep.  99. 

§107.  Defendant  may  reclaim  chattel;  proceedings  there- 
upon.—  At  any  time  before  the  return  of  the  summons,  the 
defendant  may,  if  he  does  not  except  to  the  plaintiff's  sure- 
ties, serve  upon  the  clerk  a  notice  that  he  requires  the  re- 
turn of  the  chattel  replevied.  "With  the  notice  he  must 
deliver  to  the  clerk  the  following  papers: 

1.  An  affidavit,  containing  an  allegation,  either  that  the 
defendant  is  the  owner  of  the  chattel,  or  that  he  is  lawfully 
entitled  to  the  possession  thereof,  by  virtue  of  a  special 
property  therein,  the  facts  with  respect  to  which  must  be 
set  forth. 

2.  An  undertaking,  executed  by  at  least  two  sureties,  or 
a  fidelity  or  surety  company,  specifically  authorized  by  law 
to  act  instead  of  sureties,  to  the  effect  that  they  are  bound, 
in  a  specified  sum,  not  less  than  tAvice  the  value  of  the  chat- 
tel, as  stated  in  the  affidavit  of  the  plaintiff,  for  delivery 
thereof  to  the  plaintiff,  if  delivery  thereof  is  adjudged,  and 
for  the  payment  to  him  of  any  sum,  which  the  judgment 
awards  against  the  defendant.  The  sureties  in  the  under- 
taking, must  justify  before  the  court,  upon  the  return  of 
the  summons. 

If  the  plaintiff  has  stated  separately  in  his  affidavit  the 
value  of  one  or  more  chattels,  or  classes  of  chattels,  as  pre- 
scribed in  section  ninety-eight  of  this  act,  the  defendant 
may  require  a  delivery  of  part  of  the  property  replevied, 
as  prescribed  in  that  section. 

Notes  to  section  107. 

This  section  is  taken  from  section  1337  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  which  is  the  same  as  section  2925  of  the  Code 


§  108.  Replevin.  223 

of  Civil  Procedure,  applicable  to  justices'  courts,  and  also  from  sec- 
tion 1704  of  said  Code. 

Amendment  of  undertaking. —  See  notes  to  §  3,  "  Removal." 

Description  of  property. —  The  effect  of  the  recitals  in  the  undertak- 
ing is  not  disturbed  by  this  section  giving  defendant  a  right  to  a  return 
of  the  property  replevied,  on  giving  a  bond,  although  it  be  not  the 
property  described  in  the  requisition.  Martin  v.  Gilbert,  119  N.  Y. 
298.     See  Auerbach  v.  Marks,  12  Week.  Dig.   155. 

Exception  to  and  justification  of  sureties. —  By  section  70  of  this  act 
sections  100  to  110  and  sections  127  to  128,  relating  to  undertakings, 
sureties,  and  justification,  are  made  applicable. 

Id. —  By  excepting  to  plaintiff's  sureties  the  defendant  waives  his  right 
to  a  return,  although  they  fail  to  justify.  Cullen  v.  Miller,  5  Abb.  N. 
C.  282;  Hofheimer  v.  Campbell,  59  N.  Y.  269,  affg.  7  Lans.  157.  This 
latter  decision  is  apparently  overruled  by  section  1700  of  the  Code  of 
Civil  Procedure.     See  §  100  of  this  act. 

Mistakes,  omissions,  defects,  and  irregularities  in  affidavit,  and  under- 
taking.—  See  notes  to  §  1,  subd.  3,  and  §  96. 

Undertakings. —  Sections  applicable  as  to.  See  §§  70,  92,  106  to  110, 
127,  128. 

Where  several  chattels  are  to  be  replevied. —  See  §  98. 

§  108.  Qualifications  of  sureties —  The  qualifications  of 
sureties,  as  required  by  this  act,  are  as  follows : 

1.  Each  of  them  must  be  a  resident  of,  and  a  householder 
or  freeholder  within  the  city  of  New  York. 

2.  Each  of  them  must  be  worth  twice  the  sum  specified 
for  which  they  become  obligated  in  the  undertaking  or  order 
of  arrest,  exclusive  of  property  exempt  from  execution. 

3.  A  fidelity  or  surety  company  specifically  authorized 
by  law  to  act  as  surety. 

Notes  to  section  108. 

This  section  is  taken  from  section  1338  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  which  was  the  same  as  section  2926  of  the 
Code  of  Civil  Procedure,  applicable  to  justices'  court.  It  is  sub- 
stantially the  same  as  section  579  of  said  Code,  with  the  provision  as 
to  fidelity  and  surety  companies  added.  See  also  §§70  and  92,  entitled 
"  Sections  applicable  as  to  undertakings,  et  cetera,"  being  §§  106  to  110, 
and   127  and  128  of  this  act. 

Disqualified  sureties. —  By  rule  5  of  the  Supreme  Court,  attorneys 
are  prohibited;  attorneys'  clerks  are  also  disqualified.  Miles  v.  Clarke, 
4  Bosw.  632;  Kellog  v.  Herr,  1  Law  Bull.  93;  Wheeler  v.  Wilcox,  7 
Abb.  73. 


224  Replevin.  §  109. 

The  provisions  of  this  rule  as  to  attorneys  do  not  apply  to  one  who 
has  relinquished  the  practice  of  law.  Stringham  v.  Stewart,  8  Civ. 
Proc.  Rep.  120;  Evans  v.  Harris,  47  N.  Y.  Super.  366. 

Sheriffs  and  their  officers  are  disqualified.  Bailey  v.  Warden,  20 
Johns.   129. 

It  is  necessary  to  except  to  them.     Miles  v.   Clark,  4  Bosw.  632. 

A  freeholder  is  one  who  has  title  to  real  estate.  People  v.  Scott,  8 
Hun,  566;  People  v.  Hynds,  30  N.  Y.  470. 

A  householder  for  the  purposes  of  bail  may  be  one  who  occupies  a 
portion  of  a  building  as  an  office.  Somerset  d  W.  Sav.  Bank  v.  Huyck, 
33  How.  323. 

Public  policy. —  Agreement  to  go  bail  for  a  pecuniary  consideration  is 
not  against  public  policy.     Fitch  v.  Yanderveer,    6  Week.  Dig.  243. 

Nor  where  the  bail  is  previously  indemniiied.  People  v.  Ingersoll, 
14  Abb.  N.  S.  23. 

§  109.  Justification. — For  the  purpose  of  justification, 
each  of  the  sureties  or  bail  must  attend  before  the  court,  at 
the  time  and  place  mentioned  in  the  notice,  provided  in 
section  one  hundred  and  six  of  this  act,  and  be  examined 
on  oath,  touching  his  sufficiency,  in  such  manner  as  the 
court,  in  its  discretion,  thinks  proper.  The  court  may,  in 
its  discretion,  adjourn  the  examination,  from  day  to  day, 
until  it  is  completed,  but  such  an  adjournment  must  always 
be  to  the  next  judicial  day,  unless  by  consent  of  parties.  If 
required  by  the  attorney  for  the  adverse  party,  the  exam- 
ination must  be  reduced  to  writing,  and  subscribed  by  the 
bail  or  surety. 

Notes  to  section  109. 

This  section  is  taken  from  section  1338  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  which  was  the  same  as  section  2926  of  the 
Code  of  Civil  Procedure,  relative  to  justices'  courts.  It  is  substan- 
tially the  same  as  section  580  of  said  Code.  See  also  §§  70  and  92, 
entitled  "  Sections  applicable  as  to  undertakings,  et  cetera,"  which  are 
§§  106  to  110  and  127,  128  of  this  act. 

Section  106  refers  to  "  Defendant,  when  to  except  to  sureties,  and 
proceedings  thereupon." 

Failure  to  justify,  the  sureties  cease  to  be  bail  and  cannot  surrender 
their  principal  to  relieve  themselves  from  responsibility.  Haberstro  v. 
Bedford,  118  N.  Y.  187,  affg.  5  N.  Y.  St.  Rep.  399. 

Further  time. —  If  the  bail  do  not  justify  at  the  time  fixed,  further 
time  may  be  allowed  when  cause  shown,  but  new  notice  must  be  given. 
Burns  v.  Robbins,  1  Code  Rep.  62;  Lewis  v.  Stevens,  93  N.  Y.  57. 


§§  110,  111.  Eeplevin.  225 

Surety  company. —  Justification  of  a  surety  company,  when  sufficient. 
Rosenwald  v.  Phoenix  Ins.  Co.,  9  Civ.  Proc.  Rep.  444. 

§  110.  Allowance  of  undertaking. —  If  the  court  finds  the 
surety  or  bail  sufficient,  it  must  annex  the  examination  to 
the  undertaking,  indorse  its  allowance  thereon,  and  cause 
them  to  be  filed  with  the  clerk. 

Notes  to  section  no. 

This  .section  is  taken  from  section  1338  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  which  was  the  same  as  section  2926  of  the 
Code  of  Civil  Procedure,  relative  to  justices'  courts.  It  is  substan- 
tially the  same  as  section  581  of  said  Code.  See  also  §§70  and  92, 
entitled  "  Sections  applicable  as  to  undertakings,  et  cetera,"  which  are 
§§   106  to  110,  127,  and  128  of  this  act. 

Amendment  of  undertaking. —  See  note9  to  §  3,  "  Removals." 

Approval. —  In  replevin  proceedings  plaintiff's  undertaking  must  be 
approved  by  the  justice  and  not  by  the  marshal.  Grotz  v.  Hussey,  61 
How.   448. 

Rejection  of  one  of  the  bail  is  a  rejection  of  all  unless  further  time  be 
given  by  the  court.     O'Neill  v.  Durkee,  12  How.  94. 

§  111.  When  and  to  whom  marshal  to  deliver  chattel. — If 

the  defendant  neither  excepts  to  the  plaintiff's  sureties,  nor 
requires  the  return  of  the  chattel,  within  the  time  pre- 
scribed for  that  purpose,  or  if  he  fails  to  procure  the  allow- 
ance of  his  undertaking,  or  if  the  plaintiff,  after  the  de- 
fendant has  excepted  to  his  sureties,  duly  procures  the 
allowance  of  his  undertaking,  the  marshal  must,  except  in 
the  case  specified  in  section  one  hundred  and  thirteen  of 
this  act,  immediately  deliver  the  chattel  to  the  plaintiff.  If 
the  plaintiff,  after  the  defendant  has  excepted  to  his  sure- 
ties, fails  to  procure  the  allowance  of  his  undertaking,  or 
if  the  defendant  after  he  has  required  the  return  of  the 
chattel,  procures  the  allowance  of  his  undertaking,  the  mar- 
shal must  immediately  deliver  the  chattel  to  the  defendant. 

Note  to  section    in. 

This  section  is   substantially  the  same   as   section  1339  of  the  Con- 
solidation Act    (Laws  1882,  chap.  410).     Section   113  relates  to  claim 
of  title  by  third  person,  and  proceedings  thereupon. 
15 


226  Replevin.  §§  112, 113. 

§  112.  Penalty  for  wrong  delivery  by  marshal. —  The  mar- 
shal who  delivers  to  either  party,  without  the  consent  of 
the  other,  a  chattel  replevied  by  him,  except  as  prescribed 
in  the  last  section,  or  by  virtue  of  an  execution  issued  upon 
a  judgment  in  the  action,  forfeits  to  the  party  aggrieved 
the  sum  of  one  hundred  dollars,  and  is  also  liable  to  him 
for  all  damages  which  he  sustains  thereby. 

Notes  to  section  112. 

This  section  is  the  same  as  section  1340  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  which  was  taken  from  section  2928  of  the 
Code  of  Civil  Procedure,  relative  to  justices'  courts.  See  §§  113  and 
114,   and   notes. 

What  should  be  alleged. —  In  an  action  for  a  penalty  under  this  section 
(§  2928,  Code  Civ.  Proc),  it  is  not  enough  to  allege  merely  that  de- 
fendant's act  in  delivering  certain  property  was  "  wrongful  and  un- 
lawful ;  "  facts  should  be  stated  showing  that  it  was  so.  Schroeder  v. 
Becker,  22  Week.  Dig.  261. 

§  113.  Claim  of  title  by  third  person;  proceeding  thereupon. 
—  At  any  time  before  the  chattel  which  has  been  replevied 
is  actually  delivered  to  either  party,  if  a  person  not  a  party 
to  the  action,  claims  as  against  the  defendant  a  right  to  the 
possession  thereof,  existing  at  the  time  when  it  was  replevied, 
an  affidavit  may  be  made  and  delivered  to  the  marshal  who 
executed  the  requisition,  in  his  behalf,  stating  that  he  makes 
such  claim,  specifying  the  chattel  or  chattels,  to  which  it 
relates,  if  two  or  more  chattels  have  been  replevied,  and 
the  claim  relates  only  to  part  of  them,  and  setting  forth  the 
facts  upon  which  his  right  of  possession  depends.  In  that 
case,  the  marshal  may,  in  his  discretion,  before  he  delivers 
the  chattel  to  the  plaintiff,  serve  upon  the  plaintiff's  attor- 
ney, a  copy  of  the  affidavit  with  a  notice  that  he  requires 
indemnity  against  the  claim.  If  the  indemnity  is  not  fur- 
nished within  a  reasonable  time,  after  the  plaintiff  becomes 
entitled  to  the  delivery  of  the  chattel,  the  marshal  may,  in 
his  discretion,  deliver  it  to  the  claimant  without  incurring 
any  liability  to  the  plaintiff,  by  reason  of  so  doing. 


§  114.  Replevin.  227 

Notes  to  section   113. 

This  section  is  taken  from  section  1341  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  and  from  section  1709  of  the  Code  of  Civil 
Procedure,  and  is  substantially  the  same,  substituting  the  word  "  mar- 
shal "  for  "  sheriff."  See  also  §  2929,  Code  Civ.  Proc.,  relative  to 
justices'  courts,  which  is  substantially  the  same. 

Defendant's  claim. —  Formerly  the  defendant  could  not  avail  himself 
of  the  fact  that  a  third  party  is  entitled  to  the  chattel,  and  it  was  held 
that  section  723  of  the  Code  of  Civil  Procedure  did  not  apply  to  this 
court.  See  Carsicell  v.  Alden,  12  Civ.  Proc.  Rep.  137;  s.  c,  6  N.  Y. 
St.  Rep.  297.  This  has  been  changed  by  section  116  of  this  act,  which 
is  the  same  as  section  1723  of  said  Code. 

Marshal. —  As  to  proceedings  of  the  marshal  on  claim  by  third  person 
see  Manning  v.  Keenan,  73  N.  Y.  45,  affg.  9  Hun,  G80;  Lynch  v.  St. 
John,  8  Daly,  142;  Second  Nat.  Bank  v.  Dunn,  63  How.  434,  2  Civ. 
Proc.  Rep.  259.  Where,  after  property  has  been  taken  in  replevin, 
defendant  does  not  require  its  return  upon  giving  an  undertaking  under 
section  1704,  and  no  claim  is  made  by  a  third  person  under  section  1709, 
plaintiff  is  entitled  to  its  possession,  and  an  order  of  interpleader  au- 
thorizing substitution  for  defendant  of  the  claimant  cannot  be  made. 
Pelham  Hod  El.  Co.  v.  Baggaley,  12  N.  Y.  Supp.  218;  s.  c,  34  N.  Y. 
St.  Rep.  691. 

§  114.  Action  against  a  marshal  on  claim —  A  person,  not 
a  party  to  the  action,  who  has  served  an  affidavit  as  pre- 
scribed in  the  last  section,  may  maintain  an  action,  against 
the  marshal  who  has  delivered  the  chattel  to  the  plaintiff, 
to  recover  his  damages,  by  reason  of  the  taking,  detention, 
or  delivery  of  the  chattel.  But  the  summons  in  such  an 
action  must  be  issued  within  three  months  after  the  deliv- 
ery of  the  chattel  to  the  plaintiff,  and  must  be  served  within 
three  months  after  it  is  issued.  An  action  cannot  be  main- 
tained against  a  marshal  by  a  person  so  entitled  to  make 
a  claim,  except  as  prescribed  in  this  section. 

Note  to  section    114. 

This  section  is  taken  from  section  1341  of  the  Consolidation  Act 
(Laws  1882,  chap.  410).  and  from  section  1710  of  the  Code  of  Civil 
Procedure,  and  is  substantially  the  same,  substituting  the  word  "  mar- 
shal "  for  "  sheriff."  See  also  §  2929  of  said  Code,  relative  to  jus- 
tices' court.  See  Manning  v.  Keenan,  9  Hun.  686;  affd.,  73  N.  Y.  45. 
And  see  Haskins  v.  Kelly,  1  Robt.  160,  1  Abb.  N.  S.  63;  Edgerton  v. 
Ross.  6  Abb.  189. 


228  Replevin.  §§  115,  116,  117. 

§  115.  Indemnity  to  marshal  against  such  action. —  The  in- 
demnity to  be  furnished  to  the  marshal  by  the  plaintiff,  as 
prescribed  in  the  last  section  but  one,  must  consist  of  a  writ- 
ten undertaking  to  him,  in  an  amount  at  least  double  the 
actual  value  of  the  property  claimed,  executed  by  at  least 
two  sureties,  or  in  a  proper  case  by  a  fidelity  or  surety  com- 
pany, that  they  or  it  will  indemnify  him  against  any  lia- 
bility, for  damages,  costs  or  expenses,  to  be  incurred  in  an 
action,  brought  against  him,  by  reason  of  the  taking  or  de- 
tention of  the  chattel,  or  its  delivery  to  the  plaintiff.  Each 
of  the  sureties  besides  possessing  the  other  qualifications 
required  by  law,  must  be  a  freeholder  or  householder  in  the 
city  of  New  York.  The  marshal  before  delivering  the  chat- 
tel, may  require  the  persons  offered  as  sureties,  to  submit 
to  an  examination,  before  the  court,  out  of  which  the  pro- 
ceedings issued.  The  sureties  are  entitled  to  be  sub- 
stituted as  defendants,  in  an  action,  brought  as  prescribed 
in  the  last  section,  as  if  the  chattel  had  been  levied  upon, 
by  virtue  of  an  execution. 

Note  to  section   115. 

This  section  is  taken  from  section  1341  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  and  from  'section  1711  of  the  Code  of  Civil 
Procedure.     See  also  §  2929  of  said  Code,  relative  to  justices'  courts. 

§  116.  Answer  of  title  in  third  person. —  The  defendant 
may,  by  answer,  defend,  on  the  ground  that  a  third  person 
was  entitled  to  the  chattel,  without  connecting  himself  with 
the  latter's  title. 

Note   to  section   116. 

This  section  is  the  same  as  section  1723  of  the  Code  of  Civil  Pro- 
cedure, which  is  now  made  applicable  to  this  court,  although  formerly 
it  was  not  so.     See  notes  to  §   113,  "Defendants'  claims." 

§  117.  Defendant  may  demand  judgment  for  return  of  chat- 
tel.—  Where  a  chattel  has  been  replevied,  and  the  defendant 
has  not  required  the  return  thereof,  pending  the  action,  as 
prescribed  in  the  foregoing  sections,  he  may,  in  his  answer, 
demand  judgment  for  the  return  thereof,  either  with  or 
■without  damages  for  the  taking,  withholding,  or  detention. 


§§  118,  119.  Replevin.  229 

Not^  to  section  117. 

This  section  is  the  same  as  section  1342  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  which  is  the  same  as  section  2930  of  the  Code 
of  Civil  Procedure,  applicable  to  justices'  courts. 

§  118.  For  delivery  of  property;  how  money  recovered  by 
same  judgment  may  be  collected — An  execution  for  the  de- 
livery of  a  chattel,  must  particularly  describe  the  property 
and  designate  the  party  to  whom  the  judgment  awards  pos- 
session thereof.  It  must  require  the  marshal  to  deliver  the 
possession  of  the  property  within  the  city  of  ISTew  York,  to 
the  party  entitled  thereto.  If  a  sum  of  money  is  awarded 
by  the  same  judgment,  it  may  be  collected  by  virtue  of  the 
same  execution;  or  a  separate  execution  may  be  issued  for 
the  collection  thereof,  omitting  the  direction  to  deliver  pos- 
session of  the  property.  If  one  execution  is  issued  for  both 
purposes,  it  must  contain  with  respect  to  the  money  to  be 
collected,  the  same  directions  as  an  execution  against  prop- 
erty, or  against  the  person  as  the  case  requires. 

Note  to  section    118. 

This  section  is  taken  from  section  1373  of  the  Code  of  Civil  Pro- 
cedure, and  from  section  1343  of  the  Consolidation  Act  (Laws  1882, 
chap.  410),  which  included  this  section  of  the  Code.  The  word  "mar- 
shal "  is  substituted  for  "  sheriff,"  the  reference  to  real  property  is 
excluded,  and  the  words  "  The  City  of  New  York  "  is  substituted  for 
"  County."  See  also  §  124,  "  Execution ;  contents  thereof,"  and  Van 
Rensselaer  v.  Wright,  56  Hun,  39;  Hoffman  v.  Connor,  76  N.  Y.  121; 
affd.,  13  Hun,  541. 

§  119.  Damages  when  chattel  injured,  et  cetera,  by  defend- 
ant.—  "Where  the  plaintiff  recovers  a  chattel  which  was  in- 
jured, or  otherwise  depreciated  in  value,  while  it  was  in  the 
possession  or  under  the  control  of  the  defendant,  under 
such  circumstances,  that  the  plaintiff  might  recover  dam- 
ages for  the  injury  or  depreciation,  in  an  action  brought 
against  the  defendant  therefor,  he  may  recover  the  same 
damages,  in  an  action  brought  as  prescribed  in  this  article. 
In  that  case  he  must  set  forth  the  facts  in  his  complaint, 
and  demand  judgment  for  damages  accordingly. 


230  Replevin.  §  120. 

Notes  to  section   119. 

This  section  is  the  same  as  section  1722  of  the  Code  of  Civil  Pro- 
cedure. 

Complaint. —  Where  the  plaintiff  recovers  a  chattel  which  was  injured, 
or  otherwise  depreciated  in  value,  while  it  was  in  the  possession  or 
under  the  control  of  the  defendant,  under  such  circumstances  that  the 
plaintiff  might  recover  damages  for  the  injury  or  depreciation,  in  an 
action  brought  against  the  defendant  therefor,  he  may  recover  the  same 
damages  in  an  action  brought  as  prescribed  in  this  article.  In  that 
case,  he  must  set  forth  the  facts  in  his  complaint,  and  demand  judg- 
ment for  damages  accordingly.  See  Braekelee  &  Co.  v.  Schwabeland, 
86  Hun,   143;   Corn  Ex.  Bank  v.  Blye,  56  Hun,  463. 

Measure  of  damages  for  the  detention  of  machines  placed  in  a  factory 
upon  trial  or  approval  is  the  interest  on  their  value.  Redmond  v. 
Am.  Mfg.  Co.,  121  N.  Y.  415;  affd.,  56  N.  Y.  Super.  372.  See  also 
8  Abb.  N.  C.  368;  Barry  v.  Fisher,  39  How.  521;  Smith  v.  Orser,  43 
Barb.    187. 

Separate  action. —  Plaintiff,  if  he  recovers  the  chattel,  can  maintain  a 
separate  action  to  recover  damages  for  the  taking  or  detention  of  the 
property.     Sinskie  v.  Brust,  66   App.   Div.   35. 

§  120.  Judgment  or  verdict;  what  to  state. —  The  judgment, 
verdict  or  decision,  must  fix  the  damages,  if  any,  of  the 
prevailing  party. 

1.  Where  it  awards  to  the  plaintiff  a  chattel,  which  has 
not  been  replevied,  or  where  it  awards  to  the  prevailing 
party  a  chattel,  which  has  been  replevied,  and  afterwards 
delivered  by  the  marshal  to  the  unsuccessful  party,  or  to  a 
person  not  a  party,  it  must  also  fix  the  value  of  the  chattel, 
at  the  time  of  the  trial. 

2.  In  a  case  where  the  unsuccessful  party  had  a  special 
property  therein,  not  equal  to  the  full  valuation  of  the  chat- 
tel to  fix  the  value  of  the  special  property. 

Notes  to  section   120. 

This  section  is  taken  from  sections  1726  and  1727  of  the  Code  of 
Civil  Procedure,  substituting  the  word  "  marshal  "  for  "  sheriff,"  and 
"  judgment  "   for  "  report." 

Judgment  for  plaintiffs,  in  an  action  to  recover  a  chattel,  should 
award  to  them  the  possession  of  the  chattel,  or  the  sum  fixed  as  the 
value  thereof,  if  possession  cannot  be  obtained.  Lewin  v.  Towbin,  31 
Misc.   Rep.   780. 


§§  121,  122.  Kepeevix.  231 

The  court  cannot  supply  the  omission  where  the  verdict  does  not  find 
the  value.     Pakas  v.  Racy,  13  Daly,  227. 

The  value  of  the  property  must  be  assessed  and  damages  for  its  de- 
tention. Phillips  v.  Melville,  10  Hun,  211;  Button  v.  Chapin,  7  Civ. 
Proc.  Rep.  278. 

The  verdict,  report,  or  decision  must  set  forth  the  reason  why  the 
value  of  the  chattel  is  not  fixed.  See  Claflin  v.  Davidson,  53  N.  Y. 
Super.  122;  Kecney  v.  Swan,  2  N.  Y.  St.  Rep.  214. 

An  action  for  the  recovery  of  personal  property  in  which  no  affida- 
vit or  requisition  has  been  made,  and  the  facts  required  by  sections 
1690,  1695,  are  not  alleged,  is  not  necessarily  an  action  of  replevin  so 
as  to  require  a  verdict  in  the  alternative,  but  a  verdict  for  the  value 
of  the  property  may  be  rendered.  Wilsey  v.  Rooney,  41  N.  Y.  St.  Rep. 
444,   16  N.  Y.  Supp.  471. 

For  final  judgment  under  subdivision  2  of  this  section,  see  §   123. 

§  121.  Judgment  or  verdict,  et  cetera,  for  part  of  several 
chattels. —  Where  the  action  is  brought  to  recover  two  or 
more  chattels,  the  judgment,  verdict  or  decision,  may  award 
to  one  party,  one  or  more  distinct  chattels,  which  can  be 
identified,  and  set  apart  from  the  others,  and  the  residue 
to  the  other  party,  and,  if  necessary,  the  complaint  must  be 
amended  so  as  to  conform  thereto.  The  final  judgment 
rendered  thereupon,  must  award  to  each  party  the  same 
relief,  with  respect  to  the  finding  in  his  favor,  as  if  sepa- 
rate judgments  were  rendered,  except  that,  where  each 
party  is  entitled  to  an  absolute  award  of  a  sum  of  money, 
against  the  other,  the  smaller  sum  must  be  deducted  from 
the  greater,  and  the  balance  only  must  be  awarded. 

Notes  to  section  121. 

This  section  is  new  and  taken  from  section  1728  of  the  Code  of 
Civil  Procedure,  substituting  the  word  "  judgment "  for  "  report." 
See  Woodburn  v.  Chamberlain,  17   Barb.  446. 

Costs. —  This  section  has  no  bearing  upon  the  question  of  costs. 
Newell  U.  M.  Co.  v.  Muxlow,  115  N.  Y.  170,  175;  Mertcns  v.  Fitzwater, 
53  Hun,  597;  Ackerman  v.  O'Gorman,  17  Civ.  Proc.  Rep.  275. 

§  122.  Damages;  how  ascertained  on  default. —  Where  the 
plaintiff  is  entitled  to  judgment  by  default,  for  want  of  an 
appearance  or  pleading,  the  court  to  which  he  applies  for 
judgment   may   ascertain   and   determine   the    damages   to 


232  Replevin.  §  123. 

which  he  is  entitled  and  the  value  of  the  chattel,  if  neces- 
sary. 

Note  to  section    122. 

This  section  is  the  same  as  section  1729  of  the  Code  of  Civil  Pro- 
cedure, with  the  exception  of  the  omission  as  to  directing  a  reference 
or  a  writ  of  inquiry,  as  this  court  has  no  such  power. 

§  123.  Final  judgment,  et  cetera — Final  judgment  for  the 
plaintiff  must  award  to  him  possession  of  the  chattel  recov- 
ered by  him,  with  his  damages  if  any.  If  a  chattel  recov- 
ered was  not  replevied,  or  if  after  it  was  replevied  it  Avas 
delivered  to  the  defendant,  or  to  a  person  not  a  party,  as 
prescribed  in  this  act,  the  final  judgment  must  also  award 
to  the  plaintiff  the  sum  fixed  as  the  value  thereof,  to  be  paid 
by  the  defendant,  if  possession  thereof  is  not  delivered  to 
the  plaintiff.  If  the  defendant  has  demanded  judgment  for 
the  return  of  a  chattel,  which  was  replevied,  and  afterwards 
delivered  to  the  plaintiff  or  to  a  person  not  a  party,  as  pre- 
scribed in  this  act,  final  judgment  in  his  favor  therefor  must 
award  to  him  possession-  thereof,  with  his  damages,  if  any, 
and  it  must  also  award  to  him  the  sum  fixed  as  the  value 
thereof;  to  be  paid  by  the  plaintiff,  if  possession  is  not  de- 
livered to  the  defendant.  But  if  the  case  is  one  of  those 
specified  in  subdivision  two  of  section  one  hundred  and 
twenty  of  this  act,  final  judgment  in  favor  of  the  defendant 
must  award  to  him  the  sum  fixed  as  therein  specified,  and  if 
it  is  not  collected,  the  delivery  of  the  chattel,  or,  if  the  chat- 
tel has  not  been  replevied,  or  has  been  returned  to  him  after 
replevin,  that  he  is  entitled  to  the  possession  thereof,  until 
the  sum  so  awarded  is  collected,  or  otherwise  paid. 

Notes  to  section   123. 

This  section  is  taken  from  section  1730  of  the  Code  of  Civil  Pro- 
cedure, leaving  out  the  part  commencing  "  The  judgment  may  be  dock- 
eted," because  the  same  is  applicable  only  to  courts  of  record. 

Alternative  judgment. —  An  omission  to  render  judgment  in  the  alter- 
native in  an  action  of  replevin  is  an  irregularity  which  may  be  cured 
by  modification  on  appeal.  Wolf  v.  Farley,  40  N.  Y.  St.  Rep.  808. 
See  Lewisohn  v.  Apple,  12  Civ.  Proc.  Rep.  274;  Boehm  v.  Blanchard, 
31  N.  Y.  St.  Rep.  55,  9  N.  Y.  Supp.  396. 


§§  124,  125.  Eeplevin.  233 

Dismissal  of  complaint. —  Where  plaintiff  fails  to  make  out  a  case  in 
replevin,  and  defendant  has  not  claimed  title  in  himself,  he  is  not 
entitled  to  a  judgment  of  possession  of  the  property  and  damages,  but 
only  to  a  dismissal  of  the  complaint.  Nicols  v.  Potts,  35  Misc.  Rep. 
273,  71  N.  Y.  Supp.  7G5. 

Erroneous  judgment. —  Where  judgment  was  rendered  as  follows: 
"  Upon  deposit  by  defendant  Cohen  in  court  of  $17,  together  with 
$5.50,  for  the  benefit  of  the  plaintiffs,  there  will  be  judgment  for  the 
defendant  for  the  return  of  the  piano,  with  costs."  Held  erroneous 
as  not  in  conformity  with  Code  Civ.  Proa,  §  1730.  Fischer  v.  Cohen, 
22   Misc.   Rep.   117. 

§124.  Execution;  contents  thereof — An  execution  for  the 
delivery  of  the  possession  of  a  chattel  and  to  satisfy  out  of 
the  property  of  the  judgment  debtor  a  sum  of  money  con- 
tingently awarded  against  him,  must  contain,  in  addition 
to  the  other  matters  prescribed  by  law,  the  following  direc- 
tion: 

1.  Where  the  judgment  awards  a  sum  of  money,  if  pos- 
session of  the  chattel  is  not  delivered  to  the  prevailing  party, 
the  execution  must  require  the  marshal  if  the  chattel  can- 
not be  found  within  the  city  of  New  York,  to  satisfy  the 
sum  so  awarded  with  interest  and  his  fees,  out  of  the  prop- 
erty of  the  party  against  whom  the  judgment  is  rendered. 

*A  direction  to  satisfy  a  sum  of  money  out  of  property, 
as  prescribed  in  this  section,  must  be  in  the  form  required 
by  law  for  a  like  direction,  where  an  execution  against  prop- 
erty is  issued  upon  a  judgment  for  a  sum  of  money. 

Note     to  section  124. 

This  section  is  taken  from  section  1731  of  the  Code  of  Civil  Pro- 
cedure, substituting  the  word  "  marshal  "  for  "  sheriff,"  and  the  "  city 
of  New  York"  for  "his  county."  See  also  §  118,  "For  delivery  of 
property;   how  money  recovered  by  same  judgment  may  be  collected." 

§  125.  Marshal's  power  to  take  chattel. —  For  the  purpose 
of  taking  possession  of  a  chattel,  by  virtue  of  such  an  execu- 
tion, the  powers  of  the  marshal  are  the  same  as  where  he 
is  required  to  replevy  a  chattel. 

*  So  in  original ;  should  be  "  2." 


234  Replevin.  §§  120,  127,  128. 

Note  to  section   125. 

This  section  is  the  same  as  section  1732  of  the  Code  of  Civil  Pro- 
cedure, except  that  the  word  "  marshal  "  is  substituted  for  "  sheriff." 
See  Hoffman  v.  O'Connor,  76  N.  Y.  121,  affg.  13  Hun,  541. 

§126.  Action  on  undertaking;  when  maintainable. —  A 
plaintiff  who  has  recovered  a  final  judgment  cannot  main- 
tain an  action  against  the  sureties  in  an  undertaking  given 
in  behalf  of  the  defendant  to  procure  a  return  of  the  chat- 
tel or  against  the  bail  of  a  defendant  who  has  been  arrested, 
until  after  the  return,  wholly  or  partly  unsatisfied  or  un- 
executed, of  an  execution  in  his  favor,  for  the  delivery  of 
the  possession  of  the  chattel,  or  to  satisfy  a  sum  of  money 
out  of  the  property  of  the  defendant,  or  for  both  purposes, 
as  the  case  requires.  A  defendant  who  has  recovered  a  final 
judgment  cannot  maintain  an  action  against  the  sureties  in 
the  plaintiff's  undertaking,  given  to  procure  a  replevin  until 
after  a  like  return  of  similar  execution  against  the  plaintiff. 

Note    to  section  126. 

This  section  is  the  same  as  section  1733  of  the  Code  of  Civil  Procedure. 
See  §  1,  subd.  3,  and  notes,  and  Diossy  v.  Morgan,  74  N.  Y.  11;  Harri- 
son v.  Wilkin,  78  N.  Y.  390;  Loaners'  Bank  v.  Jacoby,  10  Hun,  143; 
Jagger  v.  Lallance,  8  Daly,  251. 

§  127.  Marshal's  return;  evidence  therein. —  In  such  an  ac- 
tion against  the  sureties,  the  marshal's  return  to  the  execu- 
tion is  presumptive  evidence  of  a  failure  to  deliver  or  to 
return  a  chattel,  or  to  pay  a  sum  of  money,  according  to 
the  terms  of  the  undertaking. 

Note  to  section    127. 

This  section  is  the  same  as  section  1734  of  the  Code  of  Civil  Pro- 
cedure, except  that  the  word  "  marshal  "  has  been  substituted  for 
"  sheriff." 

§  128.  Injury,  et  cetera,  no  defence. —  It  is  not  a  defence 
to  such  an  action,  that  the  chattel  was  injured  or  destroyed, 
after  it  was  replevied,  unless  the  injury  or  destruction  was 
affected  by  the  act,  or  with  the  consent  of  the  plaintiff,  in 


§§120,  130.  Replevin.  233 

the  action,  or  occurred  after  the  chattel  was  taken  by  virtue 
of  the  execution. 

Note  to  section     128. 

This  section  is  the  same  as  section  1733  of  the  Code  of  Civil  Pro- 
cedure, and  follows  the  case  of  Jenkins  v.  Suydam,  3  Sandf.  614. 

§  129.  Proceeding  where  summons  not  personally  served. — 
Where  the  defendant  does  not  appear,  and  the  summons  has 
not  been  personally  served  upon  him,  and  a  chattel,  or  a  part 
of  a  chattel,  to  recover  which  the  action  is  brought,  has 
been  replevied,  and  the^  proceedings  thereupon  have  been 
duly  taken,  as  prescribed  in  this  act,  the  court  must  proceed 
to  hear  and  determine  the  action  with  respect  to  that  chat- 
tel, or  part  of  a  chattel,  or,  if  the  action  is  brought  to  re- 
cover two  or  more  chattels,  with  respect  to  those  which  have 
been  replevied,  in  like  manner  and  with  the  like  effect  as 
if  the  summons  had  been  personally  served. 

Note  to  section   129. 

This  section  is  the  same  as  section  1344  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  which  is  the  same  as  section  2932  of  the  Code 
of  Civil  Procedure,  relating  to  justices'  courts. 

§  130.  When  action  not  affected  by  failure  to  replevy. — 
Where  the  summons  has  been  personally  served  upon  the 
defendant,  or  where  he  appears,  the  court  must  proceed  to 
hear  and  determine  the  action,  although  the  plaintiff  has 
not  required  the  chattel  to  be  replevied,  or  the  marshal  has 
not  been  able  to  replevy  it. 

Notes  to  section  130. 

This  section  is  the  same  as  section  1345  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  and  is  the  same  as  section  2933  of  the  Code 
of  Civil  Procedure,  relating  to  justices'  courts,  substituting  the  word 
"  marshal  "   for  "  constable." 

No  requisition. —  An  action  to  recover  a  chattel  may  be  maintained, 
although  there  has  been  no  requisition.  Ghiyon  v.  Rooney,  25  N.  Y. 
St.  Rep.  326;  Irr  v.  Schroeder,  6  Civ.  Proc.  Rep.  253;  Devlin  v.  Stohl, 
2  Civ.  Proc.  Rep.  222. 


236  Action  to  Foreclose  Lien.      §§  131,  137. 

§  131.  Joinder  of  action  with  others. —  Nothing  in  this 
title  is  to  be  so  construed  as  to  prevent  the  plaintiff  from 
uniting  in  the  same  complaint  two  or  more  causes  of  action, 
in  any  case  specified  in  section  one  hundred  and  forty-six 
of  this  act. 

Notes  to  section  131. 
This  section  is  substantially  the  same  as  section   1689   of  the  Code 
of  Civil  Procedure. 

Section  146  refers  to  "  What  causes  of  action  may  be  joined  in  the 
same  complaint,"  and  subdivision  3,  "  Chattels  with  or  without  dam- 
ages for  the  taking   or  detention  thereof." 

Note. —  There  are  no  sections  from  131  to  137. 

ARTTCUE  IV. 

Action  to  Foreclose  a  Lien  on  a  Chattel. 

Section  137.  Action;    when  and  in  what  courts  maintainable. 

138.  Warrant  in  action.* 

139.  Action  on  conditional    sale   agreement,   et   cetera;    how 

brought. 

140.  Judgment;  order  of  arrest;   body  execution. 

141.  Judgment,  et  cetera. 

142.  Application  of  this  article. 

§  137.  Action;  when  and  in  what  courts  maintainable. — 
An  action  may  be  maintained  in  the  municipal  court  of  the 
city  of  New  York,  to  foreclose  a  lien  upon  a  chattel,  for  a 
sum  of  money,  where  the  amount  claimed,  exclusive  of 
costs,  does  not  exceed  five  hundred  dollars,  in  any  case 
where  such  a  lien  exists  at  the  time  of  the  commencement 
of  the  action. 

Notes  to  section  137. 

This  section  is  taken  from  section  1737  of  the  Code  of  Civil  Pro- 
cedure. The  subject-matter  follows  the  same  as  in  actions  in  the 
Supreme  Court. 

This  section  is  substantially  the  same  as  already  contained  in  section 
1,  "  Jurisdiction,"   subdivision   10.     See  notes  under  that  section. 

The  proper  mode  of  enforcing  a  common-law  lien  against  chattels  was 
discussed  by  Judges  Brady  and  Daly  in  Trust  v.  Pierson,  1  Hilt.  292, 

*So  in  original;  should  be  "for."     See  §  138. 


§§  138,  139.      Action  to  Foreclose  Lien.  237 

from  which  can  be  seen  the  difficulty  had  in  enforcing  or  satisfying  a 
lien  upon  chattels. 

Sections   137  to   142  have  regulated  and  made  plain  the  remedy. 


§  138.  Warrant  in  action  for —  In  an  action  to  foreclose 
a  lien  upon  a  chattel,  if  the  plaintiff  is  not  in  possession  of 
the  chattel,  a  warrant,  commanding  the  marshal  to  seize 
the  chattel,  and  safely  keep  it  to  abide  the  judgment,  may 
be  issued  in  like  manner,  as  a  warrant  of  attachment  may 
be  issued,  in  an  action  founded  upon  a  contract,  and  the 
provisions  of  law  applicable  to  a  warrant  of  attachment, 
issued  out  of  the  court  apply  to  a  warrant  issued  as  pre- 
scribed in  this  act,  and  to  the  proceedings  to  procure  it,  and 
after  it  has  been  issued,  except  as  otherwise  specified  in  the 
judgment. 

Note   to  section  138. 
The  first  .half  of  this  section  is  taken  from  section  1330  of  the  Con- 
solidation  Act    (Laws   1882,  chap.   410),   which   is  taken  from   section 
1740  of  the  Code  of  Civil  Procedure;   the  rest  of  section  1330  is  sub- 
stantially enacted  into  section   141  of  this  act. 

§  139.  Action  on  conditional  sale  agreement,  et  cetera;  how 
brought. — •  Ko  action  shall  be  maintained  in  this  court,  which 
arises  on  a  written  contract  of  conditional  sale  of  personal 
property;  a  hiring  of  personal  property,  where  title  is  not 
to  vest  in  the  person  hiring  until  payment  of  a  certain  sum; 
or  a  chattel  mortgage  made  to  secure  the  purchase  price  of 
chattels;  except,  an  action  to  foreclose  the  lien,  as  provided 
in  this  article.  For  the  purpose  of  this  section  an  instru- 
ment in  writing  as  above  stated  shall  be  deemed  a  lien  upon 
a  chattel.  Provided,  however,  that  an  action  may  be  main- 
tained to  recover  a  sum  or  sums  due  and  payable  for  in- 
stalment, payment  or  hiring,  but  in  such  cases  no  order  of 
arrest  shall  issue. 

Notes  to  section  139. 

This  section  is  new.  It  regulates  the  enforcement  of  a  lien  by  action 
in  this  court,  while,  by  section  142  of  this  act,  it  does  not  interfere 
with  the  provisions  of  Laws  1897,  chapter  418,  sections  80  to  85,  for 
the  enforcement  of  the  lien  by  a  sale  of  the  property  and  prohibits  an 


238  Action   to  Foreclose  Lieut.  §  14:0. 

order  of  arrest  to  issue  in  such  an  action.  Section  140  of  this  act 
however  provides  that  in  a  case  of  willful  or  malicious  disposal  of,  or 
concealment  of,  the  property,  an  order  of  arrest  may  be  granted. 

Conditional  vendor  and  vendee. —  The  former  means  the  person  con- 
tracting to  sell  goods  upon  condition  that  the  ownership  thereof  is  to 
remain  in  such  person  until  such  goods  and  chattels  arc  fully  paid  for 
or  until  the  occurrence  of  any  future  event  or  contingency;  the  term 
"  conditional  vendee,"  when  so  used,  means  the  person  to  whom  such 
goods  and  chattels  are  so  sold.     Laws   1897,  chap.  418,   §    110. 

Conditions  and  reservations  in  contracts  for  sale  of  goods  and  chattels 
are  void  as  against  subsequent  purchasers,  pledgees,  or  mortgagees  in 
good  faith,  and  as  to  them  the  sale  shall  be  deemed  absolute,  unless 
such  contract  of  sale,  or  a  true  copy  thereof,  are  filed.  Laws  1897, 
chap.  418,  §  112.  By  section  115  certain  articles  are  excluded,  such 
as  law  books,  pianos,  organs,  safes,  etc.  See  Ryan  v.  Wallowitz,  25 
Misc.  Rep.  498;  Rodney,  etc.  v.  Stewart,  57  Hun,  545;  Grant  v.  Griffith, 
39  App.  Div.  107;  Hopkins  v.  Davis,  23  App.  Div.  235. 

§140.  Judgment;  order  of  arrest;  body  execution.- — In  an 
action  of  foreclosure,  as  provided  in  the  last  section,  the 
plaintiff  may  allege  that  the  defendant  wilfully  or  ma- 
liciously disposed  of  or  concealed  the  property  or  a  part 
thereof,  covered  by  the  instrument  on  which  suit  is  insti- 
tuted, in  which  case  the  court  may  grant  an  order  of  arrest 
in  the  manner  provided  in  article  one  of  this  title,  and  upon 
such  allegation  being  proved  on  the  trial,  execution  against 
the  person  shall  issue,  if  the  provisions  of  this  act  relating 
to  indorsement  upon  the  summons  have  been  complied  with, 
unless  the  property  awarded  by  the  judgment  is  produced 
by  the  defendant  to  satisfy  the  execution  and  levy,  when 
made  as  provided  in  this  article. 

Upon  judgment  being  rendered,  as  prescribed  in  this 
article  under  the  provisions  of  this  or  the  last  preceding 
section,  and  execution  issuing  thereon,  the  property  subject 
to  levy  must  be  produced  or  possession  made  readily  avail- 
able at  the  time  of  such  levy,  to  satisfy  the  execution  in  the 
manner  prescribed  in  the  judgment,  and  on  failure  so  to  do, 
an  execution  against  the  person  shall  issue,  provided  the 
provisions  of  this  act  relating  to  indorsement  upon  the  sum- 
mons have  been  complied  with,  on  the  return  of  the  marshal 
having  the  execution  made  to  the  clerk  of  the  court  in  the 


§§  141,  112.      Action  to  Foreclose  Lien.  239 

district  in  which  the  judgment  is  docketed,  to  the  effect  that 
such  property  is  not  available  for  levy  and  execution. 

Notes  to  section  140. 

This  section  is  new.  See  also  §  271  and  §  275,  as  to  "body  execu- 
tions." 

Conversion;  boarding-house-keeper's  lien;  judgment. —  An  action  to 
enforce  a  boarding-house-keeper's  lien  upon  property  of  a  boarder 
which  he  has  clandestinely  removed  is  one  for  conversion  of  personal 
property  within  the  meaning  of  subdivision  2  of  section  2895  of  the 
Code,  and  the  justice  is  bound  to  insert  in  the  judgment  the  liability 
of  the  defendant  to  arrest  upon  execution.  Babcock  v.  Smith,  47  N.  Y. 
St.  Rep.   118;  s.  c,  19  N.  Y.  Supp.  817. 

§  141.  Judgment,  et  cetera. —  In  an  action  to  foreclose  a 
lien,  the  final  judgment  in  favor  of  the  plaintiff,  must 
specify  the  amount  of  the  lien,  and  direct  a  sale  of  the  chat- 
tel to  satisfy  the  same  and  the  costs,  if  any,  by  a  marshal, 
in  like  manner,  as  where  a  marshal  sells  personal  property 
by  virtue  of  an  execution,  and  the  application  by  him  of  the 
proceeds  of  the  sale,  less  his  fees  and  expenses,  to  the  pay- 
ment of  the  amount  of  the  lien,  and  the  costs  of  the  action. 
It  must  also  provide  for  the  payment  of  the  surplus  to  the 
owner  of  the  chattel,  and  for  the  safe  keeping  of  the  sur- 
plus, if  necessary,  by  the  clerk  of  the  court,  until  it  is 
claimed  by  him.  If  a  defendant  upon  whom  the  summons 
is  personally  served,  is  liable  for  the  amount  of  the  lien,  or 
for  any  part  thereof,  it  may  also  award  payment  accord- 
ingly. 

Note  to  section  141. 

This  section  is  taken  from  the  latter  part  of  section  1330  of  the 
Consolidation  Act  (Laws  1882,  chap.  410),  which  made  section  1739 
of  the  Code  of  Civil  Procedure  applicable  to  this  court.  It  is  also 
taken  from  section  1740  of  said  Code. 

§  142.  Application  of  this  article. —  This  title  does  not 
affect  any  existing  right  or  remedy  to  foreclose  or  satisfy 
a  lien  upon  a  chattel,  without  action,  and  it  does  not  apply 
to  a  case,  where  another  mode  of  enforcing  a  lien  upon  a 
chattel  is  specially  prescribed  by  law. 


240  Pleadings. 

Notes  to  section  142. 

This  section  is  the  same  as  section  1741  of  the  Code  of  Civil  Pro- 
cedure. 

Enforcement  of  liens  on  personal  property. —  See  Laws  1897,  chap. 
418,  §§  80  to  85,  an  act  in  relation  to  liens,  constituting  chapter  49  of 
the  General  Laws,  does  not  preclude  any  other  remedy  by  action  to 
enforce  a  lien  against  personal  property. 

Note. —  There  are  no  sections  143  or  144. 

TTTIiE  IV. 

Pleadings. 

Section  145.  Pleadings  on  joinder  of  issue. 

146.  What  causes  of  action  may  be  joined  in  the  same  com- 

plaint. 

147.  Plaintiff   to   prove   his   case, —  except   on  contract   where 

there  is  a  verified  complaint. 

148.  Defendant  may  offer  to  allow  judgment  or  compromise. 

149.  Complaint. 

150.  Answer;  what  to  contain. 

151.  Counterclaim  defined. 

152.  Rules  respecting  the  allowance  of  counterclaim. 

153.  Judgment   when   demand   or   counterclaim   are   equal,   or 

unequal. 

154.  For  affirmative  relief. 

155.  Counterclaim  when  defendant  is  sued  in  a  representative 

capacity. 

156.  When  plaintiff  is  an  executor  or  administrator. 

157.  Counterclaim  where  amount  is  in  excess  of  courts'  juris- 

diction. 

158.  When  defendant  may  demur. 

159.  Demurrer  to  complaint  must  specify  grounds  of  objection. 

160.  Demurrer  to  all  or  part  of  the  complaint;  may  answer  to 

part. 

161.  Formal  reply  or  demurrer  to  counterclaim  not  necessary. 

162.  When  plaintiff  may  demur  to  answer. 

163.  Requirements  concerning  verified   pleadings. 

164.  Verification;  how  and  by  whom  made. 

165.  Exhibition  of  accounts  at  instance  of  adverse  party  may 

be  ordered 

166.  Amendment  of  pleadings. 

167.  Private  statute ;   how  pleaded. 

168.  Judgments ;   how  pleaded. 

169.  Conditions  precedent ;    how   pleaded. 


§  145.  Pleadings.  241 

Section  170.  Pleadings  to  be  liberally  construed. 

171.  Immaterial  variance  in   pleading  to  be   disregarded. 

172.  Material  variances;   how  provided  for. 

173.  What  to  be  deemed  a  failure  of  proof. 

174.  Partial  defenses. 

175.  Complaint  in  actions  by  or  against  corporations. 

176.  When  proof  of  corporate  existence  unnecessary. 

177.  Misnomer,   when  waived. 

178.  Pleadings  in  actions  on  bastardy  bonds. 

179.  Answer   of  title. 

180.  Defendant  in  answer  of  title  to  deliver  undertaking. 

181.  New  action  to  be  brought  in  supreme  court. 

182.  Old  action ;   thereupon  discontinued. 

183.  Penalty  for  failure  to  deliver  undertaking. 

184.  Title  appearing  from  plaintiff's  own  showing. 

185.  Same  cause  of  action,  and  defense  in  new  action. 

186.  Answer   of   title   interposed   as   to    only   one   or   more   of 

several  defenses ;   proceedings  thereupon. 

187.  Interpleader  by  order  in  certain  cases. 

§  145.  Pleading  on  joinder  of  issue. —  Pleadings  in  the 
municipal  court  of  the  city  of  Xew  York,  may  be  oral  or 
written,  verified  or  unverified,  and  include  a  complaint,  an- 
swer or  demurrer. 

1.  Where  the  action  is  commenced  by  the  service  of  a 
summons  only,  the  pleadings  may  be  oral,  and  the  substance 
thereof  shall  be  endorsed  upon  the  summons  and  entered 
in  the  docket  book  of  the  court.  Issue  must  be  joined  on 
the  return  day  of  the  summons,  except  as  otherwise  ex- 
pressly prescribed  in  this  act.  The  court  may,  however,  in 
its  discretion,  order  a  written  bill  of  particulars,  with  or 
without  verification,  to  be  filed  by  the  plaintiff,  or  by  the 
defendant  interposing  a  counterclaim. 

2.  In  all  cases  where  a  written  complaint,  verified  or  un- 
verified, is  served  with  the  summons,  a  written  answer, 
verified  if  the  complaint  be  verified,  or  a  written  demurrer, 
must  be  filed  and  issue  joined  on  the  return  day,  except  as 
otherwise  expressly  prescribed  in  this  act,  unless  the  court 
further  extends  the  time  to  answer  or  demur. 

3.  Where  a  demurrer  is  interposed  and  disallowed,  the 
court  must,  notwithstanding  the  return  day  has  passed, 
grant  leave  to  plead  as  if  no  demurrer  had  been  interposed, 

16 


242  Pleadings.  §  145. 

with  or  without  costs,  in  an  amount  within  the  sum  allowed 
as  costs  in  the  action;  but  the  time  to  file  said  pleading 
shall  not  be  extended  longer  than  eight  days  from  the  time 
the  decision  on  the  demurrer  is  rendered,  unless  on  the  con- 
sent of  the  parties. 

4.  If  the  court  deems  the  demurrer  well  founded,  it  must 
permit  the  pleading  to  be  amended;  and  if  the  party  fails 
so  to  amend,  the  defective  pleading  or  part  of  a  pleading 
demurred  to  must  be  disregarded;  and  the  court  may,  in 
its  discretion,  extend  the  time  for  pleading,  in  the  manner 
prescribed  in  the  preceding  subdivision. 

5.  Where,  on  the  return  day  of  a  summons,  a  person 
appears  specially  for  the  purpose  of  raising  a  question  not 
involving  the  merits  of  the  action,  the  court  may,  in  its  dis- 
cretion, reserve  the  decision  on  the  question  raised  and  ex- 
tend the  time  to  plead,  in  the  manner  prescribed  in  subdi- 
vision three  of  this  section. 

6.  Nothing  herein  shall  be  construed  to  prevent  the  court 
ordering  a  bill  of  particulars  in  a  proper  case,  whether  the 
pleadings  be  written  or  oral. 

Notes  to  section  145. 

This  section  is  new  and  is  made  up  mainly  from  section  1346  of 
the  Consolidation  Act  (Laws  1882,  chap.  410),  which  is  derived  from 
section  3207  of  the  Code  of  Civil  Procedure,  and  which  latter  sec- 
tion made  section  3126  of  said  Code  applicable  to  this  court.  This 
section  is  also  made  up  from  the  numerous  sections  mentioned  in 
section  1347  of  the  Consolidation  Act,  which  made  section  2940  of 
Code  of  Civil  Procedure,  entitled'  "  General  rules  of  pleading,"  which 
applies  to  justices'  courts,  applicable  to  this  court.  The  provision  as 
to  indorsement  of  the  summons  and  entry  in  the  docket  in  subdivision 
1  is  taken  from  section  2938  of  said  Code,  applicable  to  justices'  courts. 

It  will  be  observed  that  while  sections  150  to  158  make  provisions 
for  a  counterclaim  by  the  defendant,  there  is  no  provision  for  a  reply 
contained  in  the  preamble  of  this  section,  which  mentions  pleadings 
in  this  court  omitting  a  reply.  Section  161  expressly  declares,  "A 
formal  reply  to  a  counterclaim  is  not  necessary,"  and  that  it  shall 
be  deemed  to  be  denied  by  the  plaintiff.  This  is  in  accordance  with 
Clinchy  v.  Apgar,  16  Misc.  Rep.  374,  where  it  was  held  a  reply  to  a 
counterclaim  in  this  court  is  not  required. 

Pleadings  to  be  in  English;  abbreviations. —  See  Code  Civ.  Proc,  §22. 

Pleading,  what  is. —  Pleading  is  the  statement  in  the  logical  and 
legal  form  of  the  facts  which  constitute  the  plaintiff's  cause  of  action, 


§  145.  Pleadings.  243 

or  the  defendant's  ground  of  defense;  it  is  the  formal  mode  of  alleging 
on  the  record  that  which  would  be  the  support  or  the  defense  of  the 
party  in  evidence.     Crane  v.  Hardmanx  4  E.  D.  Smith,  448. 

Construction. —  In  matter  of  substance  a  pleading  of  doubtful  mean- 
ing must  be  construed  most  strongly  against  the  pleader.  Browne  v. 
Empire  Type-Setting  Machine  Co.,  44  App.  Div.  598.  See  also  Booz 
v.  Cleveland  T.  F.  Co.,  45  App.  Div.  593,  61  N.  Y.  Supp.  407. 

In  this  court  pleadings  are  not  necessarily  so  detailed  and  precise 
as  required  in  the  other  courts.  Matters  of  substance,  stated  in  gen- 
eral terms  and  aided  by  a  bill  of  particulars,  which  fully  apprise  the 
defendant  of  what  is  claimed,  will  generally  suffice,  when  no  objection 
is  made  that  the  complaint  lacks  particularity.  Crane  v.  Hardman, 
4  E.  D.  Smith,  448. 

Great  latitude  is  allowed  in  pleadings  in  this  court,  and  they  are 
liberally  construed.     Ross  v.  Hamilton,  3  Barb.  609. 

The  court  will  give  a  liberal  construction  to  pleadings,  even  on  de- 
murrer. Ketteltas  v.  Meyers,  19  N.  Y.  231;  Blackman  v.  Thomas,  28 
N.  Y.  67;  Allen  v.  Paterson,  7  N.  Y.  476. 

A  liberal  interpretation  might  be  given  to  pleadings  to  sustain  ver- 
dicts and  judgments,  when  parties  have  not  been  misled  or  injustice 
done.     Graves  v.  White,  59  N.  Y.  156. 

Answers  are  liberally  construed  in  favor  of  counterclaims.  Hack- 
ford  v.  N.  Y.  C.  R.  R.  Co.,  6  Lans.  380. 

Bill  of  particulars. —  By  subdivision  1  of  this  section  the  court  may 
order  a  written  bill  of  particulars  as  there  specified,  and  by  subdivision 
6,  the  court  may  order  a  bill  of  particulars  in  any  proper  case  whether 
the  pleadings  be  written  or  oral.  By  section  165,  "Exhibition  of  ac- 
counts at  instance  of  adverse  party,"  may  be  ordered. 

Bills  of  particulars  are  of  two  kinds;  one  appertains  to  an  account 
between  parties,  the  other  to  a  claim  of  one  party.  The  rules  govern- 
ing the  right  to  one  or  the  other  are  different.  Giles  v.  Betz,  15  Abb. 
Pr.  285,  refers  to  the  latter;  Williams  v.  Shaw,  4  Abb.  Pr.  209,  to  the 
former. 

They  are  appropriate  in  all  descriptions  of  actions  where  the  cir- 
cumstances are  such  that  justice  demands  that  a  party  should  be 
apprised  of  the  matters  for  which  he  is  to  be  put  to  trial,  with  greater 
particularity  than  is  required  by  the  rules  of  pleading,  and  the  prin- 
ciple upon  which  such  orders  are  granted  is  the  advancement  of 
justice  and  the  preventing  of  surprise  at  the  trial.  Tilton  v.  Beecher, 
59  N.  Y.  176. 

Amendment. —  A  justice  of  this  court  may  allow  an  amendment  of 
the  bill  of  particulars  at  the  trial.  Dermody  v.  Flesher,  22  Misc.  Rep. 
348;  s.  c,  49  N.  Y.  Supp.  150. 

Conversion  of  personal  property. —  A  bill  of  particulars  will  be  ordered 
in  such  cases.    Humphrey  v.  Cortelyou,  4  Cow.  54;  Robinson  v.  Conner, 


244  Pleadings.  §  145. 

13  Hun,  291.     The  requisites  thereof.     Schile  v.  Brokhahne,  41  N.   Y. 
Super.    (J.  &  S.)    353. 

Effect  is  to  limit  the  testimony  to  the  items  contained  in  the  bill,  and 
to  prevent  the  introduction  of  proof  of  any  matters  not  so  contained. 
Kriess  v.  Seligman,  8  Barb.  439;  s.  c,  5  How.  425. 

Form. —  The  bill  of  particulars  need  not  be  in  any  particular  form. 
Williams  v.  Allen,  7  Oow.  316.  It  need  not  state  the  names  of  the  par- 
ties to  the  action.     Gage  v.  Carey,  9  Cow.  44. 

The  date  of  each  transaction  should  be  stated  as  accurately  as  pos- 
sible. If  the  precise  day  is  not  remembered,  the  month  or  year  must 
be  given.  Humphrey  v.  Cortelyou,  4  Cow.  54;  Kellogg  v.  Paine,  8  How. 
329.  The  time  stated  is  material  in  a  bill  of  particulars.  Quin  v. 
Astor,  2  Wend.  577;  Moron  v.  Morrissy,  28  How.  100;  Schile  v.  Brok- 
hahne, 41   N.  Y.  Super.    (J.  &  S.)    353. 

Knowledge. —  A  bill  of  particulars  will  not  be  ordered  where  the  items 
are  better  known  to  the  party  applying  for  it  than  to  the  other  party. 
Young  v.  Be  Mott,  1  Barb.  30,  4  Abb.  Pr.  209,  15  Johns.  222;  Power  v. 
Hughes,  39  N.  Y.  Super.  (7  J.  &  S.)  482. 

Non-compliance. —  An  order  should  be  made  by  the  justice,  precluding 
the  party  not  furnishing  the  bill  of  particulars,  or  account,  from 
giving  evidence  or  proof  thereof,  before  the  trial  commences.  Kellogg 
v.  Paine,  8  How.  329. 

Object  of  a  bill  of  particulars  is  that  the  other  party  should  not  be 
taken  by  surprise  from  the  generalities  of  the  pleadings  and  come  to 
trial  unprepared  as  to  the  nature  of  plaintiffs  claim.  Stevens  v. 
Weob,  12  Daly.  88;  Dwight  v.  Germania  Ins.  Co.,  84  N.  Y.  493. 

Special  contract. —  It  will  not  be  granted  in  an  action  by  an  attorney 
for  fees  claimed  under  special  contract.  Stillwell  v.  Hernandez,  7 
Daly,  485. 

Variance  between  proof  and  bill. —  As  the  object  of  a  bill  of  particulars, 
is  to  prevent  a  surprise  on  the  trial,  a  variance  between  the  proof  and 
the  bill  will  be  disregarded,  if  the  adverse  party  has  not  been  mis- 
led. Thus,  if  the  bill  of  particulars  has  advised  the  adverse  party  of 
the  evidence  which  is  to  be  offered,  so  that  there  can  be  no  mistake  as 
to  the  preparation  to  be  made  to  resist  the  claim,  the  court  will  not 
permit  the  party  furnishing  the  bill  to  be  prejudiced  by  a  variance 
between  the  bill  and  the  proof.  Smith  v.  Hicks,  5  Wend.  48 ;  Dubois 
v.   Delaware  Canal  Ca.,  12  Wend.  334;   Seaman  v.  Lord,  4  Bosw.   337. 

For  full  notes  and  cases,  in  fact  a  "  brief."  on  bills  of  particulars, 
the  student  and  practitioner  is  referred  to  2  Civ.  Code  Rep.  240,  etc. 

Reply. —  There  is  no  provision  for  a  reply  to  a  counterclaim  in  this 
act.     See  note  to  this  section  above,  and  §   161. 

Service  of  pleading. —  Where  last  day  falls  on  Saturday  half  holiday 
service  may  he  made  on  Monday.  Reynolds  v.  Palen,  20  Abb.  N.  C.  11. 
Compare  Nichols  v.  Kelsey,  20  Abb.  N.  C.  14. 


§  146,  Subd.  1.  Pleadings.  245 

Verification. —  Where  the  amended  complaint  is  verified  the  amended 
answer  must  also  be  verified,  and  where  it  is  not,  judgment  may 
be  entered  thereon.  Thum  v.  Iserman,  25  Misc.  Rep.  793,  54  N.  Y. 
Supp.   (88  St.  Rep.)   559. 

Unverified  answer;  motion  to  dismiss  complaint. —  Although  defend- 
ant does  not  serve  a  verified  answer,  he  may  move  to  dismiss  the  com- 
plaint, as  not  stating  a  cause  of  action,  and  such  motion  is  treated 
as  a  demurrer.  Morris  v.  Eunken,  40  App.  Div.  129,  57  N.  Y.  Supp. 
712. 

§  146.  What  causes  of  action  may  be  joined  in  the  same 
complaint. —  The  plaintiff  may  unite  in  the  same  complaint, 
two  or  more  causes  of  action,  where  they  are  brought  to 
recover  as  follows : 

Notes  to  section  146. 

This  section  is  made  up  from  sections  484  and  2937  of  the  Code  of 
Civil  Procedure.  The  first  relates  to  causes  of  action  that  may  be 
joined  in  the   Supreme  Court,  the  second  to  those  in  justices'  courts. 

The  preamble  is  substantially  the  same  as  section  484  of  said  Code. 
Subdivision  1  is  the  same  as  subdivision  1  of  that  section  and  the 
same  as  subdivision  2  of  section  2937  of  said  Code. 

Subdivision  2  is  the  same  as  subdivision  3  of  said  section  2937. 

Subdivision  3  is  the  same  as  subdivision  7   of  said  section   484. 

Subdivision  4  is  the  same  as  subdivision  8  of  said  section  484. 

Subdivision  5  is  the  same  as  subdivision  9  of  said  section  484. 

Subdivision  6  is  substantially  the  same  as  subdivision  10  of  section 
484. 

The  rest  of  section  146,  under  consideration,  is  taken  from  the  rest 
of  sections  484  and  2937  of  the  said  Code,  both  being  similar. 

Causes  of  action  to  be  separately  stated  and  numbered. —  Where  the 
complaint  sets  forth  two  or  more  causes  of  action,  the  statement  of 
the  facts  constituting  each  cause  of  action  must  be  separate  and 
numbered.     Code  Civ.  Proc,  §  483. 

Parties  who  may  be  joined. —  See  §  42. 

Application  of  this  article  to  defendants  jointly  liable. —  See  §  43. 
There  is  no  "article,"  it  is  included  in  title  II,  "Actions;  Summons; 
Parties,"  which  contains  no  articles. 

1.  Upon  contract,  express  or  implied. 

Notes  to  section  146,  subdivision   1. 

Administratrix  and  individually. —  There  may  be  united  in  the  same 
complaint   by   an   administratrix   an    indebtedness   to   her   as   adminis- 


246  Pleadings.  §  146,  Subd.  2. 

tratrix  under  contract  by  intestate,  and  one  on  contract  with  herself 
as  administratrix.      Valleau  v.  Cahill,  1  City  Ct.  Rep.  47. 

Breach  of  bond  and  assignment. —  A  complaint  alleging  the  giving  by 
\Y.  &  K.  of  a  bond  for  the  performance  of  a  contract,  on  which  Purvis 
was  surety,  and  a  breach  of  the  condition  thereof,  and  also  alleging  that 
\V.  assigned  his  interest  to  K.,  and  was  released,  and  that  Purvis  as- 
sented to  the  assignment  and  agreed  that  his  obligation  as  surety 
should  continue  to  be  the  same  for  K.  as  it  was  for  W.  &  K.,  states 
but  one  cause  of  action,  viz.:  For  breach  of  the  bond.  Leknen  v. 
Purvis,  29  N.  Y.  St.  Rep.  779,  55  Hun,  535. 

Contract  and  tort. —  Cannot  be  united.  Raynor  v.  Brannan,  40  Hun, 
60.  See,  however,  Grimshaw  v.  Woodfall,  15  N.  Y.  Supp.  857,  48  N.  Y. 
St.  Rep.  299;  Batches  v.  Burke,  34  Misc.  Rep.  189. 

Conversion  and  freight. —  A  claim  for  damages  for  loss  or  conversion 
of  goods  by  a  carrier,  and  to  recover  an  excess  of  freight  paid,  may 
be  united.     Adams  v.  Bissell,  28  Barb.   382. 

Money  lent  and  fraud. —  A  count  for  money  lent,  another  for  ser- 
vices, and  a  third  alleging  fraud  in  inducing  the  payment  of  the 
money,  and  the  rendering  of  the  services  is  no  misjoinder.  Campbell 
v.   Wright,  21  How.  9;  Roth  v.  Palmer,  27  Barb.  652. 

Parties. —  Causes  of  action  on  different  contracts  cannot  be  joined  in 
the  same  action,  unless  all  parties  are  affected  by  each.  Xichols  v. 
Drew,  19  Hun.  490. 

Promissory  note  and  collateral. —  A  cause  of  action  at  law  on  a  prom- 
issory note,  and  one  for  the  foreclosure  of  the  plaintiff's  lien  upon 
security  deposited  as  collateral  to  such  note,  may  be  united.  Farmers 
&  Mechanics'  \dt.  Bank  of  Buffalo  v.  Rogers,  17  N.  Y.  St.  Rep.  381. 

Several  breaches. —  Several  breaches  of  one.  contract,  although  they 
relate  to  different  portions  of  the  contract,  may  be  set  forth  in  one 
complaint  as  different  causes  of  action.     Madge  v.  Puig,  12  Hun,   15. 

Special  damages. —  An  allegation  setting  up  special  damages  arising 
from  the  breach  of  contract  sued  for  does  not  constitute  a  separate 
cause  of  action.  McKesson  v.  Russian  Co.,  27  Misc.  Rep.  96,  57  N.  Y. 
Supp.    (91   St.  Rep.)    599. 

2.  For  personal  injuries,  and  injuries  to  property,  or 
either. 

Notes  to  section   146,  subdivision   2. 

Injuries  to  personal  property  and  fraud. —  Causes  of  action  for  injuries 
to  personal  property,  one  for  conversion  of  personal  property  may 
be  united  with  one  for  false  and  fraudulent  representations,  inducing 
plaintiff  to  execute  a  bond  and  mortgage  on  his  real  estate,  to  secure 
its  payment  in  favor  of  a  third  person,  to  whom  defendant  delivered 
them  for  a  consideration.  De  Silver  v.  Holden,  50  X.  Y.  Super.  236, 
6  Civ.  Proc.  Rep.  121. 


§  140,  SuiiD*.  o,  5.  Pleadings.  247 

Negligence  and  conversion. —  A  count  for  injury  to  a  horse  by  excessive 
driving  is  properly  joined  with  a  count  for  conversion  of  a  horse. 
Summerville  v.    Mctcalf,   15   Week.  Dig.    154. 

Counterclaim. —  Causes  of  action  for  injuries  to  person  and  to  prop- 
erty can  be  united  in  one  counterclaim.  Heigel  v.  Willis,  20  N.  Y.  St. 
Rep.  639,  50  Hun,  588. 

3.  Chattels,  with  or  without  damages,  for  the  taking  or 
detention  thereof. 

Note    to  section  146,  subdivision  3. 

Replevin. —  By  section  131  of  this  act,  "article  III,  replevin."  §§  95 
to  131,  cause  of  action  for  replevin  may  be  united  with  any  other 
cause  of  action  specified  in  section  146  of  this  act. 

4.  Upon  claims  against  a  trustee,  by  virtue  of  a  contract, 
or  by  operation  of  law. 

5.  Upon  claims  arising  out  of  the  same  transaction  or 
transactions  connected  with  the  same  subject  of  action,  and 
not  included  within  one  of  the  foregoing  subdivisions  of  this 
section. 

6.  For  penalties  incurred  under  a  statute  of  the  state,  or 
an  ordinance  of  the  city  of  ~Rew  York. 

But  it  must  appear,  upon  the  face  of  the  complaint,  that 
all  the  causes  of  action,  so  united,  belong  to  one  of  the  fore- 
going subdivisions  of  this  section;  that  they  are  consistent 
with  each  other;  that  they  require  the  same  judgment;  and 
except  as  otherwise  prescribed  by  law,  that  they  affect  all 
the  parties.  Where  a  cause  of  action  for  which  a  defendant 
might  be  arrested  is  united  with  a  cause  of  action  for  which 
he  cannot  be  arrested,  an  execution  against  the  person  of  the 
defendant  cannot  be  issued  upon  the  judgment. 

Notes  to  section  146,  subdivision  5. 

Same  transaction. —  Causes  of  action  belonging  to  different  subdivi- 
sions may  be  united  in  same  complaint,  if  they  arise  out  of  the  same 
transaction.  Polley  v.  Wilkisson,  5  Civ.  Proc.  Rep.  135.  See  Sulli- 
van v.   N.  T.,  N.  H.  &  H.  R.   R.  Co.,   1   Civ.  Proc.  Rep.  285. 

Two  causes  of  action  cannot  be  considered  as  arising  out  of  the 
same  transaction,  merely  because  the  same  act  renders  the  defendants 


248  "  Pleadings.  §  147. 

liable  in  both.  Taylor  v.  Metropolitan  El.  R.  R.  Co.,  52  X.  Y.  Super. 
299. 

Ln juries  to  the  person  and  to  the  property  of  plaintiff  by  the  same 
tort  are  "  claims  arising  out  of  the  same  transaction,"  which  may  be 
united  in  the  same  complaint.  Rosenberg  v.  Staten  Island  Ry.  Co.,  14 
X.   V.  Supp.  476. 

A  complaint  alleged  that  the  defendant,  for  a  valuable  consideration, 
agreed  with  the  plaintiffs  to  carry  from  Detroit  to  Rochester  certain 
trunks,  but  that  the  defendant  so  negligently  carried  such  property 
that  the  same  was  lost  and  not  delivered  to  the  plaintiffs.  A  demurrer 
was  interposed  upon  the  ground  that  two  causes  of  action,  one  on 
contract  and  the  other  for  injuries  to  personal  property,  had  been 
improperly  joined.  Held,  that  but  one  cause  of  action  was  stated  — 
negligence  of  the  defendant;  and  that  in  any  event  the  causes  of  action 
arose  out  of  the  same  transaction,  and  the  facts  might  be  alleged. 
Rothschild  v.   The  G.  T.  R.  R.  Co.,  38  N.  Y.   St.  Rep.   869. 

Causes  of  action  must  affect  all  parties. —  The  causes  of  action  to  be 
joined  must  be  in  favor  of  all  the  plaintiffs,  and  against  all  the  defend- 
ants, and  must  belong  to  the  same  class.     Enos  v.  Thomas,  4  How.  48. 

But  it  is  not  necessary  that  various  causes  of  action  in  one  com- 
plaint should  affect  all  the  parties  equally.  Vermeule  v.  Beck,  15 
How.  333;  Earle  v.  Scott,  50  How.  506.  See  Van  Wagenen  v.  Kemp, 
7  Hun,   328. 

To  justify  the  joinder  of  two  or  more  causes  of  action  in  the  same 
complaint,  all  the  causes  of  action  must  affect  all  the  defendants ; 
and  if.  in  an  action  against  two,  one  of  the  causes  of  action  affects 
only  one  of  the  defendants,  a  demurrer  will  lie.  It  is  no  answer  to 
the  demurrer  that  the  statements  of  the  two  causes  of  action  are 
intermingled,  instead  of  being  separate.  Kelly  v.  Newman,  62  How. 
156. 

§  147.  Plaintiff  to  prove  his  case,  except  on  contract  where 
there  is  a  verified  complaint. —  If  a  defendant  fails  to  appear 
and  answer,  the  plaintiff  cannot  recover  without  proving  his 
case,  except  that  where  the  action  is  on  a  contract,  express 
or  implied,  and  a  copy  of  a  verified  complaint  was  served 
on  defendant  at  the  time  of  the  service  of  the  summons, 
judgment  may  be  taken  as  demanded  without  further  proof. 

Notes  to   section    147. 

This  section  is  taken  from  section  2891  of  the  Code  of  Civil  Pro- 
cedure relating  to  justices'  courts.  Section  1347  of  the  Consolidation 
Act  (Laws  1882,  chap.  410),  makes  said  section  of  the  Code  appli- 
cable, and  was  constructed  from  Laws  1857,  chap.  344,  §  48. 


§  147.  Pleadings.  249 

This  section  is  in  accordance  with  the  decisions  in  the  cases  of 
Hurry  v.  Coffin,  2  Civ.  Proc.  Rep.  319;  Vorzimer  v.  Shapiro,  6  Misc. 
Rep.  143;  s.  c,  55  St.  Rep.  693,  and  26  N.  Y.  Supp.  53;  Whitman  v. 
Hamilton,  27  Misc.  Rep.  198,  57  N.  Y.  Supp.  760. 

Action  to  foreclose  a  lien  upon  a  chattel,  the  judgment  must  specify- 
as  provided  in  section  141,  and  is  to  be  enforced  as  provided  in  section 
140. 

Adjournment;  default. —  The  court,  having  adjourned  the  cause  from 
the  return  day,  has  no  power  to  render  judgment  in  the  interim  aa 
upon  defendant's  default  in  answering.  Whitman,  etc.  v.  Hamilton,  27 
Misc.  Rep.  198,  57  N.  Y.  Supp.  760. 

Alias  summons;  return  of  marshal. —  An  alias  summons  cannot  prop- 
erly be  issued  by  the  clerk,  except  upon  a  return  or  affidavit  by  the 
marshal  that  he  could  not  find  the  defendant  so  as  to  serve  him  with 
the  first  summons,  and  a  judgment  founded  on  an  alias  summons  issued 
without  such  return  or  affidavit  is  void.  Loeb  v.  Smith,  24  Misc.  Rep. 
200,  52  N.  Y.  Supp.  677. 

Indorsement  upon  the  summons. —  Judgment  and  execution  against  the 
person  can  only  be  had  if  the  provisions  of  this  act  relating  to  indorse- 
ment upon  the  summons  (§§  38,  39)  has  been  complied  with.     See  §  140. 

Attorney. —  Service  of  summons  and  complaint  on  defendant's  attor- 
ney, not  followed  by  appearance  on  the  return  day,  gives  no  jurisdiction, 
and  judgment  thereupon  entered  as  by  default  is  void.  Goldberg  v. 
Fowler,  29  Misc.  Rep.  328. 

Deceit. —  Judgment  in  an  action  for  deceit  upon  a  written  complaint 
without  proof  is  unauthorized  and  improper.  Vorzimer  v.  Shapiro,  26 
N.  Y.  Supp.  53. 

Mechanic's  lien. —  Proceedings  on  return  of  summons.  Judgment  by 
default.     See  §  3406,  Code  Civ.  Proc. 

No  verified  complaint  having  been  served  with  the  summons,  plaintiff 
must  prove  the  case  to  take  judgment.  Whitman,  etc.  v.  Hamilton,  27 
Misc.  Rep.  198,  55  N.  Y.  Supp.  760;  Wallot  v.  Weber,  30  Misc.  Rep. 
632,  62  N.  Y.  Supp.  756. 

Unauthorized. —  The  summons  issued  was  not  in  the  proper  name  of 
the  defendant,  nor  stated  that  the  name  was  a  fictitious  one ;  defendant 
did  not  appear  personally,  but  his  wife,  an  ignorant  foreigner,  was 
present  on  the  return  day  apparently  to  explain  that  he  was  ill,  as  in 
fact  he  was,-  Held,  that  she  could  not  be  regarded  as  his  agent  under 
section  1294  of  the  Consolidation  Act,  and  an  amendment  of  the  sum- 
mons was  irregular  and  did  not  justify  entry  of  a  judgment  by  default 
against  defendant  in  his  proper  name.  Stromberg  v.  Carnese,  35  Misc. 
Rep.  289,  71  N.  Y.  Supp.  746. 

Omission  to  plead  is  not  an  admission  of  plaintiff's  demand,  he  must 
establish  it  by  testimony  the  same  as  if  issue  had  been  joined.  Blair 
v.  Bartlett,  75  N.  Y.  150. 


250  Pleadings.  §  148. 

§  148.  Defendant  may  offer  to  allow  judgment  or  compro- 
mise.—  The  defendant  may,  upon  the  return  of  the  sum- 
mons, and  before  answering-,  file  with  the  court  a  written 
offer  to  allow  judgment  to  be  taken  against  him  for  a  sum 
of  money,  or  for  property  therein  specified,  with  costs.  If 
there  are  two  or  more  defendants,  and  the  action  can  be 
severed,  a  like  offer  may  be  made  by  one  or  more  of  the 
defendants,  against  whom  a  separate  judgment  may  be  taken. 
If  the  plaintiff  thereupon,  before  taking  any  other  pro- 
ceeding in  the  action,  files  with  the  court  a  written  accept- 
ance of  the  offer,  the  court  must  render  judgment  accord- 
ingly. If  an  acceptance  is  not  filed,  the  offer  cannot  be 
given  in  evidence  upon  the  trial;  but,  if  the  plaintiff  fails 
to  obtain  a  more  favorable  judgment,  he  cannot  recover 
costs  from  the  time  of  the  offer,  and  must  pay  the  defend- 
ant's costs  from  that  time.  But  a  defendant  may  instead 
of  such  written  offer,  deposit  the  amount  of  his  offer,  if  a 
sum  of  money,  with  the  clerk  of  the  court,  with  like  effect. 

Notes  to  section  148. 

This  section  is  taken  from  section  2892  of  the  Code  of  Civil  Pro- 
cedure, applicable  to  justices'  courts,  which  was  made  applicable  to  thi3 
court  by  section  1347  of  the  Consolidation  Act  (Laws  1882,  chap.  410), 
and  contains  a  provision  excepting  an  action  to  recover  a  chattel.  This 
has  been  omitted  from  the  present  section,  making  it  accord  with  sec- 
tion 738  of  the  Code  of  Civil  Procedure,  applicable  to  courts  of  record, 
thus  permitting  an  offer  to  allow  judgment  to  be  taken  "  for  property 
therein  specified."  The  word  "  therein  "  however  refers  to  the  "  sum- 
mons," as  expressed  in  this  section,  which  never  specifies  property,  and 
doubtless  the  complaint  or  an  affidavit  for  replevin  is  implied.  The 
provision  at  the  end  of  the  section  allowing  a  deposit  of  a  sum  of  money 
with  the  clerk  is  new,  and  is  taken  from  section  732  of  the  Code  of  Civil 
Procedure,  applicable  to  courts  of  record.  Heretofore  there  was  no 
provision  authorizing  a  tender  or  deposit  after  suit  brought.  See  Ellen- 
stein  v.  Klee,  12  Misc.  Rep.  112. 

When  offer  may  be  made. —  The  words  "upon  the  return  of  the  sum- 
mons and  before  answering  "  do  not  limit  the  authority  to  the  return 
day  specified  in  the  process,  but  it  may  be  exercised  immediately  after 
the  service  and  actual  return  thereof.     Fowler  v.  Haynes,  91  N.  Y.  346. 

Removal  and  appeal. —  As  to  effect  of  offer  in  the  court  below  after  a 
removal  on  appeal,  see  Mock  v.  Saile,  52  Hun,  198,  23  N.  Y.  St.  Rep. 
307,  17  Civ.  Proc.  Rep.  121. 


§  149.  Pleadings.  251 

Oral  acceptance. —  In  the  case  of  Beecher  v.  Kendall,  14  Hun.  327, 
an  oral  acceptance  of  the  writter  offer  to  allow  judgment  before  the 
judgment  entered  upon  his  docket  was  held  sufficient. 

Offer  to  pay  into  court  in  mechanic's  lien  cases. —  See  Code  Civ.  Pro., 
§    3413. 


§  140.  Complaint. —  The  complaint  must  state  in  a  plain 
and  direct  manner  the  facts,  constituting'  the  cause  of  action. 

Notes  to  section   149. 

This  section  is  the  same  as  Lection  2036  of  the  Code  of  Civil  Procedure, 
applicable  to  justices'  courts,  which  was  made  applicable  to  this  court 
by  section  1347  of  the  Consolidation  Act   (Laws  1882,  chap.  410). 

Account  cr  instrument  fcr  the  payment  of  money  cnly. —  There  is  no 
provision  in  this  act  as  to  pleading  on  an  account  or  instrument  for 
the  payment  of  money  only,  and  as  section  20  makes  the  provisions  of 
the  Code  cf  Civil  Procedure  applicable  when  they  are  not  in  conflict 
with  the  provisions  of  this  act,  we  refer  the  practitioner  to  sections  531, 
534,   and   2941    upon  that   subject. 

Account  stated. —  The  complaint  in  an  action  upon  an  account  stated 
is  sufficient  if  it  sets  forth  the  fact  that  the  account  was  stated  between 
the  parties,  that  a  certain  sum  was  found  due  from  one  to  the  other, 
and  that  such  sum  has  not  been  paid.  Moss  v.  Lindblom,  39  App.  Div. 
5S6,  57  X.  Y.  Supp.   (91  St.  Rep.)    703. 

Bills  and  notes. —  Where  a  copy  of  the  instrument  sued  upon  is  set 
forth  in  the  complaint  and  that  instrument  on  its  face  shows  the  ex- 
istence of  a  valid  consideration,  no  other  averment  of  consideration  need 
be  made.  Wood  v.  Knight,  35  App.  Div.  21.  54  N.  Y.  Supp.  (88  St. 
Rep.)    4GG. 

The  complaint  in  an  action  upon  a  note  which  is  lost  need  not  allege 
the  loss.  Dupignac  v.  Quick,  26  Misc.  Rep.  872,  5(3  X.  Y.  Supp.  (90 
St.  Rep.)  385.  See  also  §  1917,  Code  Civ.  Proc.,  "Action  upon  lost 
negotiable  paper." 

The  complaint  in  an  action  by  an  indorsee  of  a  note  need  not  allege 
that  it  was  indorsed  to  plaintiff  before  maturity.  McGrath  v.  Pitkin, 
20  Misc.  Rep.  862.  56  N.  Y.  Supp.   (90  St.  Rep.)    398. 

The  allegation  that  a  promissory  note  was  indorsed  imports  its  de- 
livery by  the  indorser.  New  York  Marbled  Iron  Works  v.  Smith,  4 
Duer,  362. 

In  an  action  against  the  maker,  if  the  complaint  alleges  that  the 
note  was  payable  to  the  maker's  order,  tha+  he  indorsed  it,  or  that  the 
amount  is  due  from  him  to  the  plaintiff,  is  sufficient,  without  also 
alleging  that  the  note  belongs  to  the  plaintiff.  15  Abb.  Pr.  347,  n. ; 
Genet  v.  Sayre,  12  Abb.  Pr.  347. 


252  Pleadings.  §  149. 

In  the  complaint  upon  a  note  drawn  payable  at  a  particular  bank,  it 
is  not  necessary,  as  against  the  maker,  to  aver  demand  of  payment  at 
the  bank.     Hill  v.  Place,  5  Abb.  Pr.   (N.  S.)    18;  s.  c,  36  How.  Pr.  26. 

In  an  action  on  a  promissory  note  it  is  sufficient  to  allege  that  pay- 
ment has  been  demanded  and  refused,  without  averring  subsequent  non- 
payment.    Ahr  v.  Marx,  44  App.  Div.  391,  60  N.  Y.  Supp.   1091. 

The  complaint  in  an  action  on  a  promissory  note  brought  against 
the  maker  need  not  allege  that  the  note  was  presented  and  payment 
demanded.     Wells  v.  Simpson,  29  Misc.  Rep.  665,  61  N.  Y.  Supp.  56. 

Benefit  society. —  A  complaint  in  an  action  on  a  certificate  of  a  benefit 
society  need  only  allege  that  the  insured  and  the  beneficiary  duly  ful- 
filled all  the  conditions  of  the  certificate,  on  their  part  to  be  fulfilled, 
without  alleging  that  the  insured  was  in  good  standing  at  the  time 
of  his  death,  or  that  there  is  any  "  provident  fund  "  out  of  which  the 
benefit  can  be  paid,  the  good  standing  of  the  insured  at  the  time  of 
the  issue  of  the  certificate  being  presumed  to  have  continued  until  the 
contrary  is  shown.  Ellis  v.  National  Provident  Union,  50  App.  Div. 
255,  63  N.  Y.  Supp.  1012. 

Bond. —  The  specific  breaches  must  be  specified  in  the  complaint. 
Western  Bank  v.  Sherwood,  29  Barb.  383. 

Causes  of  action  to  be  separately  stated  and  numbered. —  Where  the 
complaint  sets  forth  two  or  more  causes  of  action,  the  statement  of  the 
facts  constituting  each  cause  of  action  must  be  separate  and  numbered. 
Code  Civ.  Proc,  §  483. 

Chattel  and  damages  where  the  chattel  was  injured  while  in  defend- 
ant's possession  may  be  recovered.  In  that  case  he  must  set  forth 
the  facts  in  his  complaint  and  demand  judgment  for  damages  accord- 
ingly.    See  §    119. 

A  complaint  in  an  action  for  the  wrongful  detention  of  chattels, 
which  alleges  that  the  plaintiff's  intestate  at  the  time  of  her  death  was 
the  owner  of,  and  entitled  to  the  immediate  possession  of,  the  chattels, 
and  that  the  plaintiff  was  duly  appointed  her  administrator;  that  the 
defendants  are  in  possession  of  the  chattels,  and  that  the  plaintiff  has 
demanded  their  delivery  to  him,  and  that  such  demand  has  been  re- 
fused, sufficiently  complies  with  the  requirement  of  section  1721  of  the 
Code  of  Civil  Procedure  that  such  a  complaint  shall  set  forth  the  facts 
showing  that  the  defendant's  possession  is  unlawful.  Rogers  v.  Conde, 
67   App.   Div.    131. 

Conclusions  of  law  not  to  be  pleaded. —  City  of  Buffalo  v.  Holloway, 
7  N.  Y.  493,  498;  Ramsay  v.  Erie  R.  R.  Co.,  38  N.  Y.  193,  214. 

An  allegation  that  a  party  failed  to  fulfill  his  obligations  is  a  con- 
clusion of  law.     Van  Schaick  v.  Winne,  16  Barb.  95. 

So  also  is  an  allegation  of  duty.  City  of  Buffalo  v.  Holloway,  7 
N.  Y.  493. 

Also,  that  a  specified  act  was  illegal  or  contrary  to  statute.  Smith 
V.  Lockwood,  13  Barb.  209;  s.  c,  10  N.  Y.  Leg.  Obs.  232. 


§  149.  Pleadings.  253 

Or,  that  the  act  was  done  pursuant  to  statute.  People  v.  McCumber, 
27   Barb.  632;   s.  c,  15  How.  186. 

Or,  that  a  party  is  not  entitled  to  a  thing;  or,  that  a  party  is  in- 
debted. Drake  v.  Cockroft,  4  E.  D.  Smith,  34;  Merritt  v.  Milliard,  5 
Bosw.  645 ;  Lienau  v.  Lincoln,  2  Duer,  670. 

Construing. —  The  allegations  of  the  complaint  must  be  liberally  con- 
strued, with  a  view  to  substantial  justice  between  the  parties.  See 
§   170. 

Contract. —  A  complaint  alleging  the  delivery  of  lumber  in  considera- 
tion of  orders  made  by  the  contractor  upon  the  owner  and  accepted  by 
him,  payable  when  certain  work  was  done ;  that  such  work  had  been 
completed,  and  that  no  part  of  the  sum  had  been  paid,  states  facts 
sufficient  to  constitute  a  cause  of  action.  Vanderbeek  v.  Hemmel,  25 
Misc.  Rep.  299,  54  N.  Y.  Supp.    (88  St.  Rep.)    562. 

Contract;  performance;  conditions  precedent. —  How  pleaded.  See 
§   169. 

Corporations. —  Complaint  in  actions  by  or  against.  See  §  175  of 
this  act,  which  is  the  same  as  §   1775,  Code  Civ.  Proc. 

A  complaint  in  an  action  against  a  foreign  corporation  is  not  de- 
murrable because  it  does  not  state  that  the  plaintiff  is  a  resident  of 
this  State,  or  where  the  contract  was  made.  Carter  v.  Hubert  Booth, 
King  d  Bro.  Pub.  Co.,  26  Misc.  Rep.  652,  56  N.  Y.  Supp.  (90  St.  Rep.) 
382. 

Custom  of  trade. —  Proof  of  a  custom  of  trade  not  pleaded  is  inad- 
missible.    Dommerich  t.  Garfunkel,  65  N.  Y.  Supp.  564. 

Demand  for  relief. —  Where  the  facts  appear  in  the  complaint,  the 
court  is  to  give  such  relief  as  the  parties  are  entitled  to,  whether  asked 
for  in  the  prayer  of  the  complaint  or  not.  12  N.  Y.  336;  Jones  v.  But- 
ler, 30  Barb.  641;   s.  c,  20  How.  Pr.   189. 

Express  and  implied  contract. —  Under  a  complaint  on  an  express 
contract  for  professional  services,  an  implied  contract  cannot  be  proved. 
Dennison  v.  Musgrarc.  29  Misc.  Rep.  627,  61  N.  Y.  Supp.   188. 

Facts  must  be  pleaded  and  not  fictions.  Lackey  v.  Vanderbilt,  10 
How.  155;  Bush  v.  Prosser,  UN.  Y.  347,  352;  Kelly  v.  Breusing,  33 
Barb.   123. 

Arguments  are  not  facts,  and  should  never  be  pleaded  as  such. 
Gould  v.  Williams,  9  How.  51. 

Every  fact  necessary  to  be  proved,  or  to  maintain  a  defense,  must  be 
pleaded.  Knowles  v.  Ore,  4  How.  317;  Allen  v.  Patterson,  7  N.  Y.  476; 
McKyring  v.  Bull,  16  N.  Y.  297;  Freeman  v.  Fulton  Fire  Ins.  Co.,  38 
Barb.  247. 

In  courts  of  limited  jurisdiction,  the  pleadings  must  contain  allega- 
tions of  every  fact  necessary  to  confer  jurisdiction.  Frees  v.  Ford,  6 
N.  Y.  176;  Kundolf  v.  Thalheimer,  12  N.  Y.  593;  Harriott  v.  New  Jersey 
R.  R.  Co.,  8  Abb.  284;  s.  c,  2  Hilt.  262. 


254  Pleadings.  §  149. 

Facts  occurring  after  suit  brought  not  pleadable  by  plaintiff.  Mutter 
v.  Earle,  37  X.  Y.  Super.  388. 

Forms. —  The  court  should  not  pay  any  attention  to  forms,  if  it  can 
find  any  allegations  which,  under  any  view  of  them,  may  give  a  right 
to  recover.     Butterworth  v.  O'Brien,  39  Barb.  L92;  s.  <■..  24  How.  Pr.  438. 

Fraud. — An  allegation  that  defendant,  "  by  trick  and  device,  or  de- 
ception or  otherwise,"  and  while  plaint  ill'  "  was  helplessly  intoxicated 
and  confined  to  his  bed  "  at  defendant's  hotel,  "  falsely  and  fraudulently 
obtained  from''  plaintiff  $1,200  —  bases  the  action  on  fraud,  and  is 
insufficient  on  demurrer  for  not  stating  the  facts  constituting  the  fraud. 
Woolsey  v.  Sunderland,  47  App.  Div.  86,  62  X".  Y.  Supp.   104. 

Hypothetical  or  alternative  form  of  pleading  not  allowed.  Wils  v. 
Fanning,  9  How.  543:  Hamilton  v.  Hough,  13  How.  14;  Corbin  v.  (iconic, 
2  Abb.  465. 

Infant. —  The  complaint  must  allege  the  due  appointment  of  the 
guardian.  Hulbert  v.  Young,  13  How.  Pr.  413;  Grantman  v.  Thrall, 
44   Barb.   173. 

A  complaint  in  an  action  against  an  infant  for  necessaries  is  suffi- 
cient, if  it  contains  allegations  which,  if  alleged  in  a  declaration  at 
common  law,  would  have  stated  a  cause  of  action  for  debt  lor  board 
and  lodging  or  goods  furnished.  It  is  not  necessary  to  allege  in  addi- 
tion that  the  infant  has  no  father  or  other  person  standing  in  loco 
parentis,  who  both  could  and  should  support  the  infant.  Goodman  v. 
Alexander,  28  App.  Div.  227;  revd.,  Goodman  v.  Alexander,  165  X.  Y. 
289. 

Judgments;  how  pleaded. — See  §  168, superseding  the  decision  in  Grigg 
v.  Reed,  26  Misc.  Rep.  298,  56  X.  Y.  Supp.  (90  St.  Rep.)   1093. 

Landlord  v.  tenant. —  A  complaint  for  "one  quarter's  rent  of"  prem- 
ises, describing  them,  and  stating  the  amount  claimed,  is  sufficient  to 
recover  against  the  assignee  of  a  lease,  for  use  and  occupation  for  a 
period  after  he  took  possession,  and  before  the  time  the  assigned  lease 
was  to  take  effect.     Hubbell  v.  Clark,  1  Hilt.   67. 

An  allegation  that  the  overflow  was  caused  by  the  negligence  of  the 
upper  tenant  in  leaving  open  a  stopcock  attached  to  a  water  apparatus 
and  allowing  the  water  to  run  into  a  basin,  which  overflowed,  sets  up 
a  good  cause  of  action  against  him.  Citron  v.  Bayley,  36  App.  Div. 
130,  55  X.  Y.  Supp.    (89  St.  Rep.)    382. 

Master  and  servant. —  The  complaint  being  for  wages  due,  plaintiff 
is  confined  to  the  period  during  which  he  actually  rendered  services; 
there  can  be  no  recovery  for  breach  of  contract  under  such  a  complaint. 
Reed  v.  Neioman,  31   Misc.  Rep.  792,  65  X.  Y.  Supp.  218. 

In  an  action  against  both  master  and  servant  for  injuries  received 
through  the  negligence  of  the  latter,  the  complaint  must  allege  facts 
which  show  at  least  by  fair  implication  that  the  act  complained  of 
was  within  the  scope  of  the  servant's  employment,  in  order  to  charge 


§  149.  Pleadings.  255 

the  master.  Fisher  v.  Brooklyn  Jockey  Club,  50  App.  Div.  44(5,  64 
N.  Y.  Supp.  69.  See  also  Allinger  v.  McKeown,  30  Misc.  Rep.  275,  63 
N.   Y.   Supp.  221. 

Mechanic's  lien  action. —  Requisites  of,  are  prescribed  in  Code  Civ. 
Proc.,  §  3404. 

Medical  expenses. —  In  an  action  for  bodily  injuries,  plaintiff  may 
prove  his  medical  expenses  under  an  allegation  that  he  "  was  put,  and 
will  still  be  put,  to  much  expense  in  the  treatment  ot  his  said  injuries." 
McCready  v.  Staten  Island  R.  R.  Co.,  51  App.  Div.  338,  64  N.  Y.  Supp. 
996. 

Money  loaned. —  A  complaint  alleging  that  on  a  day  specified  de- 
fendant was  indebted  to  plaintiff  in  the  sum  of  $1,250  for  money  loaned 
by  plaintiff  to  defendant;  that  prior  to  the  commencement  of  this 
action  payment  of  such  sum  was  demanded  from  defendant,  but  that 
no  portion  thereof  was  paid  except  $75,  which  plaintiff  realized  through 
the  foreclosure  of  a  chattel  mortgage,  and  that  the  sum  of  $1,175  is 
still  due  and  owing  by  defendant  to  plaintiff,  states  a  cause  of  action. 
Ochs  v.  Frey,  47  App.  Div.  390,  62  N.  Y.  Supp.  67. 

Money  had  and  received. —  Where  the  complaint  was  "  for  money 
had  and  received,  damages  $41.66,"  the  court  held  it  insufficient,  but 
allowed  an  amendment  to  conform  to  the  facts,  so  as  to  promote  sub- 
stantial justice.     Cushingham  v.  Phillips,  1  E.  D.  Smith,  417. 

A  complaint  which  avers  "  that  the  defendant  received  the  sum  of 
$1,813.47,  belonging  to,  or  on  account  of  the  plaintiff,  and  which  is  now 
due  to  him,"  does  not  state  facts  sufficient  to  constitute  a  cause  of 
action.     Betts  v.  Bache,  14  Abb.  Pr.  279. 

Recovery  for  money  received,  under  complaint,  alleging  also  conver- 
sion.    Knapp  v.  Roche,  37  N.  Y.  Super.   (J.  &  S.)   305. 

Necessaries  furnished  wife. —  A  complaint  in  an  action  to  recover  for 
necessaries  furnished  to  a  wife  is  sufficient  if  it  contains  allegations 
which,  if  alleged  in  a  declaration  at  common  law,  would  have  a  cause 
of  action  for  goods  furnished.  The  fact  that  it  also  alleges,  in  a  case 
where  the  defendant  and  his  wife  were  living  separate  and  apart  from 
each  other,  that  the  purchase  was  made  by  her  as  his  agent,  will  not 
preclude  a  recovery  without  proof  of  an  express  agency,  and  the  ex- 
clusion of  evidence  tending  to  show  that  the  articles  furnished  were 
necessaries  for  the  wife  and  children,  on  the  ground  that  it  tended  to 
prove  a  different  cause  of  action,  is  reversible  error.  Hatch  v.  Leonard, 
38  App.  Div.  128;  revd.,  Hatch  v.  Leonard,  165  N.  Y.  435. 

Necessaries  of  infant. —  See  "'  Infant,"  above. 

Partners;  firm  name. —  A  firm  may  do  business  under  the  name  of 
one  of  the  partners  alone,  and  can  sue  in  all  their  names  on  a  contract 
made  in  the  name  of  such  one  alone.     Martin  v.  Johnson,  8  Daly,  541. 

Performance. —  Under  an  allegation  of  full  performance  of  a  con- 
tract, plaintiff  cannot  prove  excuses  and  waivers.  Bloch  v.  Remelius, 
30  Misc.  Rep.  804,  61   N.  Y.  Supp.  1124. 


256  Pleadings.  §  149. 

Private  statute. —  How  pleaded.     See  §  167. 

Replevin. —  Requisites  of  complaint  in  action  to  recover  chattels. 
Schofield  v.  Whitelegge,  49  N.  Y.  259 ;  Simmons  v.  Lyons,  56  N.  Y.  671; 
ran  Der  Minden  v.  Elsas,  36  N.  Y.  Super.   (J.  &  S.)   66. 

Omission  to  allege  demand  and  refusal.  Treat  v.  Hathom,  3  Hun, 
646. 

Representative  capacity. —  A  complaint  will  not  be  held  bad  as  not 
stating  facts  sufficient  to  constitute  a  cause  of  action,  because  it  con- 
tains no  express  allegation  that  the  plaintiff  sues  in  a  representative 
capacity,  if  the  complaint  contains  the  essential  averments  showing 
that  the  plaintiff  has  such  representative  capacity,  and  fairly  apprises 
the  defendant  that  the  intent  of  plaintiff  is  to  prosecute  in  such  ca- 
pacity.    Cordier  v.  Thompson,  8  Daly,  172. 

Special  damages  which  are  the  natural  but  not  necessary  result  of 
the  injury  complained  of  must  be  specifically  alleged.  Geoghegan  v. 
Third  Ave.  R.  R.  Co.,  51  App.  Div.  369,  64  N.  Y.  Supp.  630. 

Time. —  Where  time  is  of  the  essence  of  the  contract,  waiver  thereof 
cannot  be  proved  if  not  alleged.  Rode  v.  Auerback,  31  Misc.  Rep.  765, 
64  N.  Y.  Supp.  774. 

Use  and  occupation. —  It  is  not  necessary  to  aver  how  the  relation  of 
landlord  and  tenant  arose.  A  complaint,  stating  that  on,  etc.,  the  de- 
fendant became  indebted  to  the  plaintiff  in  the  sum  of,  etc.,  for  the 
use  and  occupation  of  the  plaintiff's  premises,  situated  at,  etc.,  and  that 
no  part  of  that  sum  has  been  paid,  states  facts  sufficient  to  constitute  a 
cause  of  action.     Waters  v.  Clark,  22  How.  Pr.  104. 

The  plaintiff  need  not  set  forth  an  implied  demise,  but  may  declare 
for  use  and  occupation,  and  recover  on  the  special  facts  shown.  Mor- 
ris v.  Mies,  12  Abb.  Pr.  103. 

Waiver. —  In  an  action  to  foreclose  a  mechanic's  lien  for  work  and 
materials  furnished  under  a  building  contract,  which  makes  the  archi- 
tect's certificate  a  condition  precedent  to  plaintiff's  right  of  payment, 
evidence  of  a  waiver  of  such  certificate  is  not  admissible  unless  the 
waiver  is  pleaded.  Bossert  v.  Poerschke,  51  App.  Div.  381,  64  N.  Y. 
Supp.  733. 

What  must  be  specially  alleged. —  Claim  for  allowance  for  materials. 
Read  v.  Decker,  5  Hun,  646. 

Failure  of  consideration  of  a  sealed  instrument.  Dubois  v.  Hermance, 
56  N.  Y.  673,  affg.  1  Sup.  Ct.   (T.  &  C.)   293. 

In  an  action  to  recover  exempt  property  taken  under  execution  the 
officer,  if  he  wishes  to  justify  under  a  judgment  given  for  purchase 
money,  must  plead  the  justification.  Dennis  v.  Snell,  54  Barb.  411;  s. 
c,  34  How.  Pr.  467. 

A  former  adjudication  upon  the  same  cause  of  action.  Dalrymple  v. 
Hunt,  5  Hun,  111. 

Pendency  of  another  action,  and  set-off  there.  White  v.  Talmage,  35 
N.  Y.  Super.   (3  J.  &  S.)   223. 


§  150.  Pleadiktgs.  257 

Necessity  of  averring  special  damage.  Baldwin  v.  N.  Y.  &  Harlem 
Nav.  Co.,  4  Daly,  314. 

§  150.  Answer;  what  to  contain. —  The  answer  of  the  de- 
fendant must  contain: 

1.  A  general  or  specific  denial  of  each  material  allegation 
of  the  complaint  controverted  by  the  defendant,  or  of  any 
knowledge  or  information  thereof,  sufficient  to  form  a 
belief. 

2.  A  statement  of  any  new  matter  constituting  a  defense 
or  counterclaim,  in  ordinary  and  concise  language,  without 
repetition. 

Notes  to  section  150. 

This  section  is  the  same  as  section  500  of  the  Code  of  Civil  Procedure. 
Section  1347  of  the  Consolidation  Act  (Laws  1882,  chap.  410),  made 
section  2938  of  the  Code  of  Civil  Procedure,  applicable  to  justices' 
courts,  apply  to  this  court.  That  section  does  not  provide  for  answer 
on  information  and  belief.  The  cases  of  Nicoll  v.  Clark,  13  Misc.  Rep. 
128,  and  Lambert  v.  Hoffman,  20  Misc.  Rep.  331,  decided  that  an  answer, 
alleging  that  the  defendant  has  no  knowledge  or  information  sufficient 
to  form  a  belief,  was  neither  a  proper  form  of  denial  nor  one  author- 
ized in  this  court. 

In  order  to  assimilate  the  practice  of  this  court  to  courts  of  record 
section  500,  instead  of  section  2938,  of  the  Code  of  Civil  Procedure  was 
taken. 

Abatement  and  bar. —  If  defendant  unite  matter  in  abatement  and 
matter  in  bar,  the  court  may  disregard  the  former,  and  try  the  cause 
upon  the  merits.  Monteith  v.  Cash,  1  E.  D.  Smith,  412;  Andreas  v. 
Thorp,  1  E.  D.  Smith,  615. 

An  allegation  of  the  rendition  of  a  former  judgment  is  sufficient  to 
raise  the  question  of  its  effect  as  a  bar;  it  is  not  necessary  to  plead 
any  legal  conclusions  flowing  from  that  fact.  Bracken  v.  Atlantic 
Trust  Co.,  36  App.  Div.  67,  55  N.  Y.  Supp.   (89  St.  Rep.)   506. 

Admissions. —  Allegations  in  the  complaint  not  denied  in  the  answer 
must  be  deemed  admitted.  Gregory  v.  Trainer,  4  E.  D.  Smith,  58;  Den- 
nison  v.  Carnahan,  1  E.  D.  Smith,  144. 

Another  action  pending;  discontinuance  and  abatement. —  The  plea 
of  another  action  pending  for  the  same  cause  of  action  is  not  supported 
when  it  appears  that,  before  the  present  suit  was  begun,  a  former  action 
in  the  same  court,  in  which  the  summons  was  served,  abated,  or  became 
discontinued  because,  owing  to  the  failure  of  the  plaintiff's  attorney  to 
pay  the  trial  fee,  the  clerk  did  not  put  the  case  on  the  calendar,  and 
it  was  never  called  for  trial.     Goldstein  v.  Loeb,  21  Misc.  Rep.  72. 

17 


258  Pleadings.  §  150. 

AFFIRMATIVE  DEFENSES;    WHAT  MUST  BE  PLEADED;   WHAT 
CANNOT  BE  PROVEN    UNDER  A  GENERAL  DENIAL. 

Consideration. —  The  complaint  being  upon  a  contract  under  seal,  the 
seal  is  presumptive  evidence  of  consideration,  the  lack  of  which  is  an 
affirmative  defense  which  must  be  pleaded  and  cannot  be  proved  under 
a  denial  of  the  allegation  that  defendant  entered  into  the  agreement 
for  a  good  and  valuable  consideration.  Recknagal  v.  Steinway,  58  App. 
Div.  352,  modifying  and  affg.  33  Misc.  Rep.  (133,  G8  N.  Y.  Supp.  957. 

Possession. —  In  replevin  by  the  owner  of  a  chattel  wrongfully  taken 
from  him,  brought  against  a  warehouseman  who  received  it  from  the 
wrongdoer,  a  general  denial  only  puts  in  issue  the  question  whether  he 
is  lawfully  in  possession,  and  not  whether  he  is  in  innocent  possession, 
and  such  defense  must  be  pleaded.  Milligan  v.  Brooklyn  Warehouse 
d  Storage  Co.,  34  Misc.  Rep.  55,  68  N.  Y.  Supp.  744. 

Statute  of  frauds. —  The  defense  of  the  statute  of  frauds  is  an 
affirmative  one  and  cannot  be  established  under  a  general  denial. 
Franklin  Coal  Co.  v.  Hicks,  46  App.  Div.  441,  61  N.  Y.  Supp.  875.  See 
Stokes  v.  Polley,  164  N.  Y.  266;  Cruikshank  v.  Press  P.  Co.,  32  Misc. 
Rep.  152,  65  N.  Y.  Supp.  678;  Rishel  v.  Weil,  31  Misc.  Rep.  70,  63  N.  Y. 
Supp.   178. 

The  defense  of  an  accord  and  satisfaction  must  be  specially  pleaded. 
Habrich  v.  Donahue,  51  App.  Div.  375,  64  N.  Y.  Supp.  604.  See  also 
Geneva  M.  Co.  v.  Coursey,  45  App.  Div.  268,  61  N.  Y.  Supp.  98. 

Statute  of  limitations  must  be  pleaded'.  Baldwin  v.  Martin,  14  Abb. 
Pr.  N.  S.  9. 

Conclusion  of  fact. —  An  allegation  in  an  answer  that  plaintiff  ratified 
and  confirmed  a  certain  payment,  and  elected  to  consider  it  a  proper 
payment  to  defendants,  etc.,  is  an  allegation  of  a  conclusion  of  fact  and 
not  of  a  conclusion  of  law.  Spies  v.  Monroe,  35  App.  Div.  527,  54  N.  Y. 
Supp.    (88  St.  Rep.)    916. 

Construing. —  The  allegations  of  the  answer  must  be  liberally  con- 
strued with  a  view  to  substantial  justice  between  the  parties.  See 
§   170. 

Contract;  performance;  conditions  precedent;  how  pleaded. —  See 
§  169. 

Conversion. —  An  admission  in  an  answer  in  an  action  of  conversion 
that  "  demand  has  been  made  for  the  delivery  of  the  note  and  that  he 
has  not  delivered  it  "  is  not  a  sufficient  admission  of  a  refusal  to  de- 
liver. Halbrau  v.  Gray,  25  Misc.  Rep.  693,  55  N.  Y.  Supp.  ( 89  St.  Rep. ) 
501. 

Corporation. —  Code  Civ.  Proc.,  §  1777.  In  an  action  or  special  pro- 
ceeding, brought  by  or  against  a  corporation,  the  defendant  is  deemed 
to  have  waived  any  mistake  in  the  statement  of  the  corporate  name, 
unless  the  misnomer  is  pleaded  in  the  answer  or  other  pleading  in  the 
defendant's  behalf. 


§  150.  Pleadings.  259 

Defect  of  parties  must  be  set  up  in  the  pleadings.  Avogando  v.  Bull, 
4  E.  D.  Smith,  384,  and  is  waived  unless  the  objection  is  taken  by 
answer.  Crouch  v.  Parker,  56  N.  Y.  597;  Hecs  v.  Ncllis,  1  Sup.  Ct. 
(T.  &  C.)    118. 

Fact  in  complaint. —  Where  the  existence  of  a  fact  is  alleged  in  the 
complaint  it  is  not  necessary  for  the  defendant  to  plead  the  same  fact 
in  the  answer  in  order  to  entitle  him  to  take  advantage  of  it.  Terry 
v.  Buck,  40  App.  Div.  419,  57  N.  Y.  Supp.   (91  St.  Rep.)   980. 

Form  of  denial. —  Defendant  "  has  not  sufficient  knowledge  or  in- 
formation to  form  a  belief  as  to  the  allegations  "  contained  in  specified 
paragraphs  of  the  complaint,  "  and  he  therefore  denies  the  same," 
instead  of  the  denial  prescribed  in  Code  Civ.  Proc,  §  500,  that  he 
"  denies  that  he  has  any  knowledge  or  information  sufficient  to  form 
a  belief,"  disapproved.  Johnson  v.  Andrews,  34  Misc.  Rep.  89,  68  N. 
Y.  Supp.  764.  See  also  Burkert  v.  Bennett,  35  Misc.  Rep.  318,  71  N.  Y. 
Supp.   144. 

An  allegation  in  an  answer  that  "  the  defendants  deny  any  knowledge 
or  information,"  etc.,  should  be  "  deny  that  they  have  any  knowledge 
or  information,"  in  order  to  constitute  a  denial ;  and  a  denial  of  "  the 
allegations  contained  in  the  paragraphs  of  the  complaint  numbered 
first,  second,  and  third,"  being  in  gross,  is  bad.  Burkett  v.  Bennett,  35 
Misc.  Rep.  318,  71  N.  Y.  Supp.  144. 

An  allegation  in  an  answer  that  defendant  "  has  no  information 
sufficient  to  form  a  belief  "  as  to  the  allegations  of  the  complaint  is 
insufficient  under  Code  Civ.  Proc,  §  500,  10  put  them  in  issue,  there 
being  no  statement  as  to  defendant's  knowledge.  Steinback  v.  Diepen- 
brock,  52  App.  Div.  437,  65  N".  Y.  Supp.  118;  Place  v.  Bleyl,  45  App. 
Div.  17,  60  N.  Y.  Supp.  800. 

Where  the  complaint  alleges  that  a  certain  sum  is  "  due,  owing,  and 
unpaid,"  a  denial  that  such  sum,  or  any  sum  whatever,  is  due  or  owing 
raises  no  issue,  as  it  admits  that  the  sum  named  is  unpaid.  De  Forest 
v.  Andrews,  27  Misc.  Rep.  145,  58  N.  Y.  Supp.   (92  St.  Rep.)    358. 

Setting  out  a  version  of  the  transaction  in  question  inconsistent  with 
that  set  forth  in  the  complaint  is  not  a  denial.  Place  v.  Bleyl,  45  App. 
Div.  17. 

Fraud. —  While  this  court  has  no  equity  jurisdiction,  fraud  in- 
ducing a  contract  is  there,  as  elsewhere,  available  as  a  defense.  Es- 
telle  v.  Dinsbern,  9  Misc.  Rep.  485;  s.  c,  61  N.  Y.  St.  Rep.  96;  s.  c,  30 
N.  Y.  Supp.  226.     See  also  17  Misc.  Rep.  371. 

The  rule  that  where  a  transaction  is  capable  of  two  inferences,  one 
in  favor  of  the  integrity  of  the  transaction  and  the  other  to  the  con- 
trary, the  former  inference  will  prevail,  is  applicable  in  respect  to 
fraud  upon  the  law  as  well  as  to  fraud  in  fact.  Perry  v.  Booth,  67  App. 
Div.  235. 

General  denial. —  In  an  action  for  goods  sold  and  delivered,  where 
plaintiff  proves  a  sale  by  sample,  it  is  reversible  error  not  to  allow  de- 


260  Pleadings.  §  150. 

fendant  to  prove,  under  a  general  denial,  that  the  goods  delivered  were 
not  in  accordance  with  the  sample,  since  he  by  his  answer  fully  met  the 
issue  presented  by  the  complaint.  Wilson  v.  t'lickinger  Co..  32  Misc. 
R«p.  :$<i!>. 

A  general  denial  does  not  put  in  issue  the  fact  alleged  in  the  com- 
plaint of  defendants  incorporation,  and  plaintiff  need  not  prove  it. 
Deutz  Lithographing  Co.  v.  International  Registry  Co.,  32  Misc.  Rep. 
687,  66  X.  Y.  Supp.  540. 

A  defendant  should  never  plead  as  a  detense  anything  which  is 
embraced  in  a  general  denial.  McManus  v.  Western  Assurance  Co.,  43 
App.  Div.  550,  affg.  22  Misc.  Rep.  328,  54  N.  Y.  Supp.  (88  St.  Rep.) 
564. 

Inconsistent  defenses. —  A  defendant  may  plead  as  many  defenses  as 
lie  wishes  and  their  inconsistency  is  no  objection.  Seeman  v.  Bandler, 
25  Misc.  Rep.  328,  54  N".  Y.  Supp.   ( 88  St.  Rep. )  546. 

Defendant  may  plead  separate,  though  inconsistent,  defenses.  Kelley 
v.  Supreme  Council  of  Catholic  Mut.  Benefit  Assoc,  46  App.  Div.  79, 
61  X.  Y.  Supp.  394. 

Insufficient. —  Where  the  plaintiff  serves  a  verified  written  complaint, 
in  an  action  on  contract,  the  defendant  must  serve  a  verified  answer; 
and  where  such  an  answer,  interposed  to  one  of  the  causes  of  action, 
merely  states  that  the  defendant,  by  his  attorneys,  "  alleges  and  respect- 
fully shows,"  that  certain  allegations  of  the  complaint  "  are  denied," 
it  is  ineffectual  for  any  purpose,  and  the  plaintiff  is,  in  the  absence  of 
any  amendment  being  allowed  upon  the  trial,  entitled  to  judgment  upon 
that  cause  of  action.  The  plaintiff  is  not  bound  in  such  a  case  to  move 
to  make  the  answer  more  definite  and  certain.  Feder  v.  Samson,  22 
Misc.   Rep.    111. 

Judgment;  how  pleaded. —  See  §  168,  superseding  the  decision  in 
Gregg  v.  Feed,  26  Misc.  Rep.  298,  56  X.  Y.  Supp.  (90  St.  Rep.)   1093. 

Misnomer  in  an  action  by  or  against  a  corporation  is  waived  unless 
pleaded  in  the  answer.     See  §  177  of  this  act. 

Mitigation  of  damages. —  See  §  174.  A  separate  defense  setting  up 
facts  in  mitigation  of  damages,  characterizes  itself  as  a  partial  defense. 
Robinson  v.  Evening  Post  Pub.  Co.,  25  Misc.  Rep.  243,  55  X.  Y.  Supp. 
(89  St.  Rep.)   62,  28  Civ.  Proc.  Rep.  239. 

New  matter. —  A  defense  can  consist  only  of  new  matter,  which 
constitutes  a  defense  to  the  action  if  all  the  material  allegations  of 
the  complaint  be  taken  as  true;  new  matter  being  matter  which  is  not 
embraced  within  the  issue  raised,  or  which  can  be  raised  by  a  denial, 
i.  e.,  it  is  matter  which  cannot  be  proved  under  a  denial.  Staten  Island 
Midland  R.  R.  Co.  v.  Hinchcliffc,  34  Misc.  Rep.  49,  68  "NT.  Y.  Supp.  556. 

Matter  pleaded  only  as  a  defense  is  not  available  as  a  counterclaim, 
not  being  pleaded  as  such.  Pratt  cf-  Whitney  v.  American  Pneumatic 
Tool  Co.,  50  App.  Div.  369,  63  X.  Y.  Supp.  10G2. 


§  150.  Pleadings.  261 

A  defendant  cannot  join  with  denials  new  matter  alleged  as  a  defense, 
as  such  a  course  would  prevent  the  plaintiff  from  demurring.  Fay  v. 
Hanercoas,  26  Misc.  Rep.  421,  57  N.  Y.  Supp.   (CI  St.  Rep.)    155. 

Misjoinder. —  An  answer  for  misjoinder  of  defendants  cannot  be  intro- 
duced after  issue  joined  and  proof  taken  on  the  merits.  Montfort  v. 
Hughes,  3  E.  D.  Smith,  591. 

Nonjoinder. —  The  defense  of  nonjoinder  of  parties,  being  a  plea  in 
abatement,  should  not  only  state  the  names  of  the  parties  omitted, 
but  allege  that  they  are  living  within  the  jurisdiction  of  the  court  and 
within  reach  of  process.  Mittendorf  v.  N.  Y.  &  Harlem  R.  R.  Co.,  58 
App.  Div.  260,  68  N.  Y.   Supp.   1094. 

Partial  defenses. —  How  pleaded.     See  §  174. 

Payment;  application  of. —  Where  a  payment  is  made  upon  general 
account,  and  no  direction  is  given  as  to  its  application,  the  law  applies 
it  to  the  oldest  items.     Perry  v.  Booth,  67  App.  Div.  235. 

Private  statute. —  How  pleaded.    See  §  167. 

Separately  stated  and  numbered. —  The  requirement  that  defenses 
must  be  separately  stated  and  numbered  is  not  satisfied  by  simply 
numbering  the  paragraphs  of  the  answer.  Fay  v.  Hanercoas,  26  Misc. 
Rep.  421,  57  N.  Y.  Supp.   (91  St.  Rep.)   155. 

Set-off. —  A  joint  debt  cannot  be  set  off  against  an  individual  one. 
Campbell  v.  Genet,  2  Hilt.  290. 

Statute  of  frauds  need  not  be  pleaded,  but  only  the  facts  relied  on 
to  invoke  it.     Morrill  v.  Cooper,  65  Barb.  512. 

Sufficient. —  An  answer  in  an  action  which  informs  the  plaintiff  of 
the  nature  of  the  defense,  and  the  character  of  the  evidence  by  which 
it  is  to  be  sustained,  is  sufficient.  Smith  v.  Hildenbrand,  15  Misc.  Rep. 
129. 

Supplemental  answer. —  Whether  a  supplemental  answer  was  allow- 
able was  questioned  in  Russell  v.  Rtickman,  3  E.  D.  Smith,  419;  and 
in  Meyers  v.  Rosenback,  7  Misc.  Rep.  560,  it  is  shown  that  no  such  power 
exists. 

Tender;  payment  into  court. —  A  plea  of  tender  before  action  should 
allege  the  tender  and  refusal,  and  that  defendant  has  always  been,  and 
still  is,  ready  to  pay  ( 8  Barb.  408,  5  Abb.  Pr.  358,  23  Barb.  490,  2  E.  D. 
Smith,  197,  2  Den.  196),  and  the  amount  tendered  must  be  paid  into 
court  (2  E.  D.  Smith,  197,  25  How.  Pr.  464),  and  notice  of  such  pay- 
ment must  be  given  to  the  plaintiff's  attorney.  25  How.  Pr.  464. 
The  answer  should  aver  that  the  money  is  brought  into  court.  7  Robt. 
389,  21  N.  Y.  343.  A  defense  of  tender  after  action  commenced  must 
state  the  amount  tendered  and  should  include  interest  and  costs  to  the 
time  of  the  tender  (8  How.  Pr.  258),  and  the  amount  must  be  paid  into 
court.  45  Barb.  579,  2  Hill,  538,  Cow.  Tr.,  §§  1148  to  1160,  7  Robt. 
389,  36  How.  Pr.  26,  5  Abb.  Pr.  N.  S.  18,  25  How.  Pr.  464,  45  Barb. 
554,  30  How.  Pr.  226,  61  N.  Y.  317. 


262  Pleadings.  §  151. 

Payment -of  money  into  court  admits  the  cause  or  causes  of  action 
stated  in  the  complaint,  to  the  amount  paid  in,  but  beyond  that  the 
defendant  may  make  his  defense  (Cow.  Tr.,  §  1154,  7  Johns.  315,  2 
Wend.  431),  and  the  plaintiff  is,  in  any  event,  entitled  to  the  amount 
tendered  or  paid  in.  1  Barb.  115,  1  E.  1).  Smith,  498,  1  Wend.  191,  13 
Wend.  390.  If  the  defendant  pays  in  court  less  than  is  due,  the  plaintiff 
is  entitled  to  a  verdict  and  judgment  for  the  whole  amount,  and  must 
credit  the  payment  on  the  judgment,  for  this  preserves  his  right  to  costs, 
but  if  the  payment  equals  the  debt,  defendant  should  have  a  verdict. 
Dakin  v.  Dunning  7  Hill,  30. 

Test  of  sufficiency  of  defense. —  The  sufficiency  of  a  defense  is  tested 
by  the  question  whether,  taking  all  the  allegations  of  the  complaint  to 
be  true,  it  constitutes  a  defense  to  the  action,  Staten  Island  Midway 
R.  R.  Co.  v.  Hinchcliffe,  34  Misc.  Rep.  624,  70  N.  Y.  Supp.  601. 

Title  to  sue. —  Answer,  not  demurrer,  the  remedy  where  complaint 
fails  to  show  title  to  sue.    Barclay  v.  Quicksilver  Mining  Co.,  6  Lans.  25. 

Usury. — Requisites  of  pleading  usury.  Taylor  v.  Jackson,  5  Daly, 
497 ;  M.  E.  Nat.  Bank  v.  C.  W.  Co.,  49  N.  Y.  635. 

The  defendants  are  bound  to  set  up  in  the  answer  the  contract,  giv- 
ing its  terms,  and  the  amount  of  the  usurious  premium  or  interest  taken 
by  the  lender.  4  Paige,  526,  8  Paige,  457,  11  Paige,  17,  3  Hill,  565,  11 
Barb.  100,  12  Barb.  601;  Grigg  v.  Howe,  31  Barb.  100;  Miller  v.  Schuy- 
ler, 20  N.  Y.  522. 

Waiver. —  Answer  on  the  merits  waives  all  objections  which  would 
go  in  abatement  of  the  action;  notwithstanding  the  objection,  either  in 
the  form  of  a  motion  to  dismiss  the  complaint,  or  by  a  demurrer,  which 
has  been  overruled,  had  been  previously  taken.     Andreas  v.  Thorp,  1  E. 

D.  Smith,  015;  Monteith  v.  Cash,  1  E.  D.  Smith,  412;  Harper  v.  Leal, 
10  How.  Pr.  276;  Gardner  v.  Clark,  6  How.  Pr.  449;  Bridge  v.  Payson, 
5  Sandf.  210;   Gossling  v.  Broach,  1  Hilt.  49;  Boardman  v.  Gamble,  4 

E.  D.  Smith,  463. 

A  variance  between  the  summons  and  the  complaint  is  waived  by 
pleading  to  the  merits.  Miln  v.  Russell,  3  E.  D.  Smith,  303,  and 
note  (b)  ;  Brown  v.  Jones,  3  Abb.  Pr.  80;  s.  c,  1  Hilt.  204;  Hogan  V. 
Baker,  2  E.  D.  Smith,  22;  Robinson  v.  West,  1  Sandf.  19;  s.  c,  11  Barb. 
309;   Stevens  v.  Benton,  39  How.  Pr.   13;   s.  c,  2  Lans.  156. 

The  objection  that  plaintiff  has  not  legal  capacity  to  sue  is  waived, 
if  not  taken  by  demurrer  or  answer.  Palmer  v.  Davis,  28  N.  Y.  242 ; 
Van  Amringe  v.  Barnett,  8  Bosw.  357;  Bobbins  v.  Wells,  26  How.  Pr. 
15;  s.  c,  less  fully,  18  Abb.  Pr.  191.  See  contra,  Mosselmann  v.  Caen, 
1  Hun,  64. 

§  151.  Counterclaim  defined. —  The  counterclaim,  specified 
in  the  last  section,  must  tend,  in  some  way,  to  diminish  or 
defeat  the  plaintiff's  recovery,  and  must  be  one  of  the  fol- 


§  152.  Pleadings.  263 

lowing  causes  of  action  against  the  plaintiff,  or,  in  a  proper 
case,  against  the  person  whom  he  represents,  and  in  favor 
of  the  defendant,  or  of  one  or  more  defendants,  between 
whom  and  the  plaintiff  a  separate  judgment  may  be  had  in 
the  action : 

1.  A  cause  of  action  arising  out  of  the  contract  or  trans- 
action, set  forth  in  the  complaint  as  the  foundation  of  the 
plaintiff's  claim,  or  connected  with  the  subject  of  the  action. 

2.  In  an  action  on  contract,  any  other  cause  of  action  on 
contract,  existing  at  the  commencement  of  the  action. 

Notes   to   section    151. 

This  section  and  sections  152,  153,  154,  155,  and  156  are  taken  from 
sections  501  to  506  of  the  Code  of  Civil  Procedure. 

In  the  case  of  H anion  v.  Metropolitan  Life  Ins.  Co.,  29  N.  Y.  Supp. 
65 ;  s.  c,  9  Misc.  Rep.  70,  decided  in  June,  1894,  it  was  pointed  out  that 
section  502  of  the  Code  of  Civil  Procedure  did  not  apply  to  this  court. 
This  present  section  is  intended  to  remedy  the  former  defect.  By  sec- 
tions 2945  and  2946  of  the  Code  of  Civil  Procedure,  sections  501  to  506 
were  applicable  to  justices'  courts.  By  the  present  section  all  these 
sections  are  now  made  applicable  to  this  court. 

Conversion  and  contract. —  A  cause  of  action  for  conversion  cannot 
be  made  a  counterclaim  in  an  action  upon  contract  unless  it  arises  out 
of  the  same  transaction,  or  is  connected  with  the  subject  of  the  action. 
Do  Forest  v.  Andrews,  27  Misc.  Rep.  145,  58  N.  Y.  Supp.  (92  St.  Rep.) 
358,  29  Civ.  Proc.  Rep.  250. 

Incapacity. — ■  For  form  of  demurrer  to  counterclaim,  see  Armour  v. 
Leslie,  39  N.  Y.  Super.    (J.  &  S.)   353. 

Incapacity  to  sue  not  waived  by  not  demurring.  Mosselmann  v.  Caen, 
1  Hun,  64. 

Partnership. —  A  cause  of  action  against  a  partnership  cannot  be  in- 
terposed as  a  counterclaim  in  an  action  brought  by  one  of  the  partners. 
Be  Forest  v.  Andrews,  27  Misc.  Rep.  145,  58  N.  Y.  Supp.  (92  St.  Rep.) 
358,  29  Civ.  Proc.  Rep.  250. 

Statute  of  limitations  not  available  to  defeat  counterclaim  unless 
pleaded.     Williams  v.  Willis,  15  Abb.  Pr.  N.  S.  11. 

Summary  proceedings. —  A  counterclaim  is  allowed  in  this  proceed- 
ing.    Sage  V.  Crowley,  35  Misc.  Rep.  117. 

§  If) 2.  Rules  respecting  the  allowance  of  counterclaim. — 
Hut  the  counterclaim,  specified  in  subdivision  second  of  the 
last  section,  is  subject  to  the  following  rules : 


264  Pleadings.  §  153. 

1.  If  the  action  is  founded  upon  a  contract,  which  has 
been  assigned  by  the  party  thereto,  other  than  a  negotiable 
promissory  note  or  bill  of  exchange,  a  demand  existing 
against  the  party  thereto,  or  an  assignee  of  the  contract,  at 
the  time  of  the  assignment  thereof,  and  belonging  to  the 
defendant,  in  good  faith,  before  notice  of  the  assignment, 
must  be  allowed  as  a  counterclaim,  to  the  amount  of  the 
plaintiff's  demand,  if  it  might  have  been  so  allowed  against 
the  party,  or  the  assignee,  while  the  contract  belonged  to 
him. 

2.  If  the  action  is  upon  a  negotiable  promissory  note  or 
bill  of  exchange,  which  has  been  assigned  to  the  plaintiff 
after  it  became  due,  a  demand  existing  against  a  person  who 
assigned  or  transferred  it,  after  it  became  due,  must  be 
allowed  as  a  counterclaim,  to  the  amount  of  the  plaintiff's 
demand,  if  it  might  have  been  so  allowed  against  the  as- 
signor, while  the  note  or  bill  belonged  to  him. 

3.  If  the  plaintiff  is  a  trustee  for  another  or  if  the  action 
is  in  the  name  of  the  plaintiff,  who  has  no  actual  interest 
in  the  contract  upon  which  it  is  founded,  a  demand  against 
the  plaintiff  shall  not  be  allowed  as  a  counterclaim;  but  so 
much  of  a  demand  existing  against  the  person  whom  he 
represents,  or  for  whose  benefit  the  action  is  brought,  as 
will  satisfy  the  plaintiff's  demand,  must  be  allowed  as  a 
counterclaim,  if  it  might  have  been  so  allowed  in  an  action 
brought  by  the  person  beneficially  interested. 

Note  to  section   152. 

See  notes  to  §  151. 

§  153.  Judgment  when  demand  or  counterclaim  are  equal 
or  unequal. —  Where  a  counterclaim  is  established,  which 
equals  the  plaintiff's  demand,  the  judgment  must  be  in  favor 
of  the  defendant.  Where  it  is  less  than  the  plaintiff's  de- 
mand, the  plaintiff  must  have  judgment  for  the  residue  only. 
Where  it  exceeds  the  plaintiff's  demand,  the  defendant  must 
have  judgment  for  the  excess,  or  so  much  thereof  as  is  due 
from  the  plaintiff;  the  judgment  does  not  prejudice  the  de- 


§§  154,  155,  156.  Pleadings.  265 

fendant's  right  to  recover,  from  another  person,  so  much 
thereof  as  the  judgment  does  not  cancel. 

Note  to  section   153. 

See  notes  to  §  151. 

§154.  For  affirmative  relief . —  In  a  case  not  specified  in 
the  last  section  where  a  counterclaim  is  established,  which 
entitles  the  defendant  to  an  affirmative  judgment,  demanded 
in  the  answer,  judgment  must  be  rendered  for  the  defendant 
accordingly. 

Note  to  section  154. 

See  notes  to  §  151. 

§  155.  Counterclaim  when  defendant  is  sued  in  a  representa- 
tive capacity. —  In  an  action  against  an  executor  or  adminis- 
trator, or  other  person  sued  in  a  representative  capacity, 
the  defendant  may  set  forth,  as  a  counterclaim,  a  demand 
belonging  to  the  decedent  or  other  person  whom  he  repre- 
sents, where  the  person  so  represented  would  have  been 
entitled  to  set  forth  the  same,  in  an  action  against  him. 

Note  to  section   155. 

See  notes  to  §  151,  and  §  1,  subd.  18. 

§  156.  When  plaintiff  is  an  executor  or  administrator. —  In 
an  action  brought  by  an  executor  or  administrator,  in  his 
representative  capacity,  a  demand  against  the  decedent,  be- 
longing, at  the  time  of  his  death  to  the  defendant,  may  be 
set  forth  by  the  defendant  as  a  counterclaim,  as  if  the  action 
had  been  brought  by  the  decedent  in  his  lifetime;  and,  if  a 
balance  is  found  to  be  due  to  the  defendant,  judgment  must 
be  rendered  therefor  against  the  plaintiff,  in  his  representa- 
tive capacity.  Execution  can  be  issued  upon  such  a  judg- 
ment only  in  a  case  where  it  could  be  issued  upon  a  judg- 
ment in  an  action  against  the  executor. 

Note  to  section  156. 

See  notes  to  §  151,  and  §  1,  subd.  18. 


266  Pleadings.  §§  157,  158. 

§  157.  Counterclaim  where  amount  is  in  excess  of  courts' 
jurisdiction.—  Where  defendant  has  a  counterclaim  which 
is  in  excess  of  the  amount  of  the  jurisdiction  of  this  court, 
the  counterclaim  may  be  interposed,  and  in  the  event  of 
judgment  being  rendered  in  defendant's  favor,  sustaining 
said  counterclaim,  said  judgment  shall  not  be  for  any  larger 
sum  in  any  event  than  the  sum  to  which  the  court  has  juris- 
diction, exclusive  of  costs,  but  nothing  in  this  section  shall 
be  construed  to  estop  such  a  defendant  from  bringing  an 
action  against  the  plaintiff  for  the  difference  between  the 
sum  of  the  court's  jurisdiction,  and  the  sum  claimed  by 
said  defendant  to  be  due  unless  the  judgment  shall  state 
that  the  sum  awarded  by  the  judgment  is  the  whole  amount 
found  to  be  due. 

Note  to  section  157. 

See  notes  to  §  151. 

§  158.  When  defendant  may  demur. — The  defendant  may 
demur  to  the  complaint,  where  one  or  more  of  the  follow- 
ing objections  thereto,  appear  upon  the  face  thereof : 

1.  That  the  court  has  not  jurisdiction  of  the  person  of 
the  defendant. 

2.  That  the  court  has  not  jurisdiction  of  the  subject  of 
the  actioji. 

Notes  to  section  158. 

This  section  is  the  same  as  section  488  of  the  Code  of  Civil  Pro- 
cedure. 

Section  1347  of  the  Consolidation  Act  (Laws  1882,  chap.  410)  made 
section  2939  of  the  Code  of  Civil  Procedure,  which  was  applicable  to 
justices'  courts,  applicable  to  this  court,  but  it  was  thought  that  section 
488  of  the  Code,  applicable  to  courts  of  record,  was  clearer,  so  that 
section  was  made  to  apply  instead  of  section  2939. 

Amendment  of  pleadings. —  See  §  166. 

Counterclaim. —  A  demurrer  to  a  counterclaim  is  not  necessary  in 
this  court.     See  §  161. 

Demurrer  and  answer. —  Demurrer  to  all  or  part  of  the  complaint, 
and  answer  to  part  may  be  made  as  provided  by  section  160  of  this 
act.  See  McKesson  v.  Russian  Co.,  27  Misc.  Rep.  96,  57  N.  Y.  Supp. 
(91  St.  Rep.)  579,  where  it  was  held,  that  where  a  complaint  states 
but  a  single  cause  of  action  the  defendant  cannot  demur  to  a  part  and 
answer  as  to  another  part. 


§  158,  Subds.  3,  5,  6.       Pleadings.  267 

Joint  demurrer. —  A  joint  demurrer  by  two  defendants  cannot  be 
sustained  if  the  complaint  states  a  cause  of  action  against  either. 
Moore  v.  Chas.  E.  Monell  Co.,  27  Misc.  Rep.  235,  58  N.  Y.  Supp.  (92 
St.  Rep.)  430. 

Part. —  A  demurrer  to  a  part  only  of  a  single  cause  of  action  is  bad. 
Toplitz  v.  Toplitz,  54  App.  Div.  630,  66  N.  Y.  Supp.  386. 

Several  defenses. —  A  demurrer  taken  to  several  defenses  will  be  over- 
ruled if  one  of  them  is  good.  McGrath  v.  Pitkin,  26  Misc.  Rep.  862, 
56  N.  Y.  Supp.   (90  St.  Rep.)   398. 

3.  That  the  plaintiff  has  not  legal  capacity  to  sue. 

4.  That  there  is  another  action  pending  between  the  same 
parties,  for  the  same  cause. 

Notes  to  section  158,  subdivision  3. 

Waiver. —  The  objection  that  plaintiff  has  no  legal  capacity  to  sue  is 
waived,  if  not  taken  by  demurrer  or  answer.  Palmer  v.  Davis,  28  N.  Y. 
242;  Van  Amringe  v.  Barnett,  8  Bosw.  357;  Robbins  v.  Wells,  26  How. 
Pr.  15,  less  fully  reported  in  18  Abb.  Pr.  191. 

To  the  contrary,  see  Mosselmann  v.  Caen,  1  Hun,  64. 

5.  That  there  is  a  misjoinder  of  parties  plaintiff. 

Notes  to  section   158,  subdivision  5. 

See  Ackley  v.  Tarbox,  29  Barb.  512;  Abbe  v.  Clark,  31  Barb.  238, 
where  it  was  held  a  demurrer  would  not  lie  where  two  persons  are 
improperly  joined  as  plaintiffs.     This  section  nullifies  these  decisions. 

An  objection  of  misjoinder  of  plaintiff  must  be  taken  by  demurrer  or 
answer.     Egbert  v.  Hanson,  34  Misc.  Rep.  760. 

6.  That  there  is  defect  of  parties,  plaintiff  or  defendant. 

Notes  to  section   158,  subdivision  6. 

In  Persons  v.  Kruger,  39  App.  Div.  416,  57  N.  Y.  Supp.  (91  St.  Rep.) 
416,  it  was  held  a  defense  that  there  are  partners  not  made  parties 
must  be  pleaded,  and  the  answer  must  state  their  names.  This  section 
nullifies  that  decision. 

Nonjoinder. —  A  demurrer  cannot  be  sustained  for  the  nonjoinder  of 
a  party,  unless  it  appears  that  he  is  still  living.  Strong  v.  Wheaton,  38 
Barb.  616. 

Surviving  partner,  etc. —  The  objection  that  the  surviving  partners, 
although  alleged  to  be  insolvent,  should  be  joined  as  parties  in  an 
action  against  the  representatives  of  a  deceased  partner  should  be  taken 


268  Pleadings.  §§  159,  160. 

by  demurrer,  and  cannot  bo  raised  for  the  first  time  on  appeal.     Hotopp 
v.  Ruber,  160  N.  Y.  524,  55  N.  E.  Rep.  206. 

7.  That  causes  of  action  have  been  improperly  united. 

8.  That  the  complaint  does  not  state  facts  sufficient  to 
constitute  a  cause  of  action. 

Note  to  section  158,  subdivision  8. 
Test. — -The  test  by  which  a  demurrer,  on  the  ground  the  complaint 
does  not  state  a  cause  of  action,  is  to  be  tried,  is  whether  the  complaint 
sets  forth  facts  which,  if  true,  would  entitle  the  plaintiff  to  any  relief 
whatever.  Struble  v.  Kings  County  Trust  Co.,  60  App.  Div.  548,  60 
N.  Y.  Supp.  1092. 

§  159.  Demurrer  to  complaint  must  specify  grounds  of  objec- 
tion.—  The  demurrer  must  distinctly  specify  the  objections 
to  the  complaint,  otherwise  it  may  be  disregarded.  An  ob- 
jection, taken  under  subdivision  first,  second,  fourth  or 
eighth  of  section  one  hundred  and  fifty-eight  of  this  act, 
may  be  stated  in  the  language  of  the  subdivision;  and  an 
objection  taken  under  either  of  the  other  subdivisions,  must 
point  out  specifically  the  particular  defect  relied  upon. 

Note  to   section    159. 

This  section  is  the  same  as  section  480  of  the  Code  of  Civil  Pro- 
cedure, applicable  to  courts  of  record,  and  is  new  as  applicable  to  this 
court.  There  is  no  similar  provision  applicable  to  justices'  courts. 
Section  2939  of  the  Code  of  Civil  Procedure,  applicable  to  justices' 
courts,  provides  for  a  demurrer  without  requiring  the  statement  of  any 
grounds. 

§  160.  Demurrer  to  all  or  part  of  the  complaint;  may  answer 
to  part. —  The  defendant  may  demur  to  the  whole  complaint, 
or  to  one  or  more  separate  causes  of  action,  stated  therein. 
In  the  latter  case,  he  may  answer  the  cause  of  action  not 
demurred  to. 

Note  to   section    160. 

This  section  is  the  same  as  section  492  of  the  Code  of  Civil  Pro- 
cedure, applicable  to  courts  of  record,  and  is  new  as  applicable  to  this 
court. 

Separate  paragraph. —  A  demurrer  will  only  lie  to  the  whole  of  a 
cause    of   action    or   defense,    and    not   to   a    separate    paragraph   of    a 


§f  161,  162.  Pleadings.  269 

pleading.     HoUingsicorth  v.  Spectator  Co.,  53  App.  Div.  291,  65  N.  Y. 
Supp.  812. 

A  demurrer  must  be  directed  to  an  entire  cause  of  action  or  de- 
fense ;  it  cannot  be  made  to  a  separate  paragraph  of  a  pleading  not 
designated  nor  considered  as  a  separate  defense,  and  it  the  party  de- 
siring to  demur  so  regards  it  he  should  first  move  that  it  be  properly 
designated.  A".  ./.  Steel  d-  Iron  Co.  v.  Robinson,  60  App.  Div.  69,  affg. 
33  Misc.  Rep.  361.  68  N.  Y.  Supp.  577.  See  also  McKesson  v.  Russian 
Co.,  27  Misc.  Rep.  96,  57  X.  Y.    (91   St.  Rep.)    430. 

§  161.  Formal  reply  or  demurrer  to  counterclaim  not  neces- 
sary.—  A  formal  reply  to  a  counterclaim  is  not  necessary. 
The  counterclaim  shall  be  deemed  denied  by  the  plaintiff 
unless  specifically  admitted  on  the  trial.  It  also  may  be 
objected  to  on  motion,  or  demurred  to  as  if  the  counter- 
claim were  an  affirmative  cause  of  action,  set  up  in  a  com- 
plaint. 

Note    to  section    161. 
This  section  is  new.    It  will  be  observed  that  the  preamble  to  section 
145  omits  a  reply. 

§  162.  When  plaintiff  may  demur  to  answer. —  The  plaintiff 
may  demur  to  a  counterclaim  or  a  defence  consisting  of  new 
matter  contained  in  the  answer,  on  the  ground  that  it  is  in- 
sufficient in  law  on  the  face  thereof. 

Notes   to  section   162. 

This  section  is  the  same  as  section  494  of  the  Code  of  Civil  Pro- 
cedure, relative  to  courts  of  record,  and  is  new  as  applicable  to  this 
court. 

Bad  complaint. —  A  bad  answer  is  good  enough  for  a  bad  complaint, 
and,  on  demurrer  to  the  former  for  insufficiency,  the  sufficiency  of  the 
complaint  may  be  attacked.  Savage  v.  City  of  Buffalo,  50  App.  Div. 
136,  63  X.  Y.  Supp.  941. 

Demurrer  to  the  answer  opens  the  complaint  to  attack,  and,  if  bad,  it 
will  be  dismissed.  Tuthill  v.  City  of  New  York,  29  Misc.  Rep.  555,  61 
N.  Y.  Supp.  968.     See  also  Kent  v.  Village,  etc.,  50  N.  Y.  Supp.  502. 

Form. —  A  form  of  demurrer,  "  that  said  amended  answer  is  insuffi- 
cient for  the  reason  that  it  does  not  state  facts  sufficient  to  con- 
stitute a  defense,''  is  defective,  and  should  be  overruled,  since  Code 
Civ.  Proc,  §  494,  requires  it  to  be  made  upon  "  the  ground  that  the 
pleading  is  insufficient  in  law  upon  the  face  thereof,"  a  demurrer  being 


270  Pleadings.  §§163, 164. 

a  technical  pleading,  and,  if  materially  defective,  not  raising  an  issue. 
McCarm  v.  Hazard,  36  Misc.  Rep.  7,  72  N.  Y.  Supp.  45. 

§163.  Requirements  concerning  verified  pleadings. —  The 
allegations  or  denials  in  a  verified  pleading  must  in  form  be 
stated  to  be  made  by  the  party  pleading.  Unless  they  are 
therein  stated  to  be  made  on  the  information  and  belief 
of  the  party,  they  must  be  regarded,  for  all  purposes,  as 
having  been  made  on  the  knowledge  of  the  person  verifying 
the  pleading.  An  allegation  that  the  party  has  not  suffi- 
cient knowledge  or  information  to  form  a  belief  with  respect 
to  a  matter,  must,  for  the  same  purpose,  be  regarded  as  an 
allegation  that  the  person  verifying  the  pleading  has  not 
such  knowledge  or  information. 

Note  to  section  163. 

This  section  is  substantially  the  same  as  section  524  of  the  Code  of 
Civil  Procedure,  relating  to  courts  of  record.  For  authorities  under 
this  section,  see  the  Annotated  Codes  of  Civil  Procedure,  and  see  notes 
to  next  section. 

§  164.  Verification;  how  and  by  whom  made. —  The  verifi- 
cation must  be  made  by  the  affidavit  of  the  party,  or,  if 
there  are  two  or  more  parties  united  in  interest,  and  plead- 
ing together,  by  at  least  one  of  them  who  is  acquainted  with 
the  facts,  except  as  follows: 

1.  Where  the  party  is  a  domestic  corporation,  the  verifi- 
cation must  be  made  by  an  officer  thereof. 

2.  Where  the  people  of  the  state  are,  or  a  public  officer, 
in  their  behalf,  is  the  party,  the  verification  may  be  made 
by  any  person  acquainted  with  the  facts. 

3.  Where  the  party  is  a  foreign  corporation;  or  where 
the  party  is  not  within  the  county  where  the  attorney  re- 
sides, or  if  the  latter  is  not  a  resident  of  the  state,  the  county 
where  he  has  his  office,  and  capable  of  making  the  affidavit; 
or,  if  there  are  two  or  more  parties  united  in  interest  and 
pleading  together,  where  neither  of  them,  acquainted  with 
the  facts,  is  within  that  county  and  capable  of  making  the 
affidavit;  or  where  the  action  or  defence  is  founded  on  a 
written  instrument  for  the  payment  of  money  only,  which 


§  165.  Pleadings.  271 

is  in  the  possession  of  the  agent  or  the  attorney;  or  where 
all  the  material  allegations  of  the  pleading  are  within  the 
personal  knowledge  of  the  agent  or  the  attorney;  in  either 
case  the  verification  may  be  made  by  the  agent  of  or  the 
attorney  for  the  party. 

Notes   to  section   164. 

This  section  is  the  same  as  section  525  of  the  Code  of  Civil  Pro- 
cedure, relating  to  courts  of  record.  Section  524  of  the  Code  of  Civil 
Procedure,  which  is  substantially  similar  to  section  163  of  this  act,  is 
entitled  "  Form  and  construction  of  certain  allegations  and  denials 
in  verified  pleadings."  Section  526  of  said  Code  is  entitled  "  Form  of 
affidavit  of  verification,"  which  has  been  omitted  from  this  act,  and 
is  probably  made  applicable  by  the  general  provisions  of  section  20 
of  this  act. 

Association. —  Must  be  in  the  name  of  the  person  suing,  or  if  by  any 
other  officer,  it  must  be  as  agent  or  attorney.  Tallmadge  v.  Lounds- 
bury,  23  Abb.  N.  C.  331. 

Attorney. —  A  statement  that  the  attorney  "  could  not  find  the  party 
in  the  city  "  gives  no  sufficient  reason  for  a  verification  by  an  attorney, 
and  such  an  answer  may  be  treated  as  a  nullity.  Lyons  v.  Murat,  54 
How.  Pr.  23.     And  see  Duparquet  v.  Fairfield,  49  Hun,  471. 

Corporaticn. —  See  American  Insulator  Co.  v.  Bankers,  etc.,  13  Daly, 
200;  Kelly  v.  Woman's  Pub.  Co.,  15  Civ.  Proc.  Rep.  259,  4  N.  Y. 
Supp.  99. 

Date. —  Failure  to  insert  the  date  in  a  verification  not  fatal.  Griffin 
v.  Barton,  21  Misc.  Rep.  513:   Babcock  v.  Kuntsch,  85  Hun,  33. 

Defective  verification;  remedy. —  See  §  528,  Code  Civ.  Proc.  The  veri- 
fication of  an  answer  to  a  duly  verified  complaint,  which  states  that 
"  the  foregoing  answer  is  true,"  omitting  the  words  "  to  his  knowl- 
edge," is  insufficient,  and  the  plaintiff  may  return  the  answer,  and 
proceed  as  on  failure  to  answer.  Sexauer  v.  Bowen,  3  Daly,  405 ;  s.  c, 
10  Abb.  N.  S.  335;  Snaps  v.  Gilbert,  13  Hun,  494.  See  Fusco  v.  Adams, 
19  Civ.  Proc.  Rep.  48. 

Knowledge. —  Where  all  the  allegations  are  made  upon  the  knowledge 
of  the  person  verifying,  the  affidavit  may  omit  the  statement  as  to  in- 
formation and  belief.     Ladue  v.  Andrew,  54  How.  160. 

§  165.  Exhibition  of  accounts  at  instance  of  adverse  party 
may  be  ordered. —  The  court  may  at  the  time  of  pleading,  or 
at  any  other  time  before  the  trial,  require  the  plaintiff  or 
defendant  to  exhibit  to  the  inspection  of  the  adverse  party, 
with  liberty  to  copy  the  same,  any  writing  or  account  de- 


272  Pleadings.  §  166. 

clared  on  or  set  up  in  the  way  of  offset  or  counterclaim,  or 
if  not  so  exhibited,  may  prohibit  its  afterward  being  given 
in  evidence. 

Notes   to  section    165. 

This  section  is  the  same  as  section  1301  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  which  was  taken  from  section  24,  chapter  344, 
Laws  1857,  and  was,  in  addition  to  section  2942  of  the  Code  of  Civil 
Procedure,  relating  to  justices'  courts,  made  applicable  to  this  court 
by  section  1347  of  the  Consolidation  Act.  It  applies  only  to  "  any 
writing  or  account  "  and  is  distinct  from  a  bill  of  particulars.  See 
§  531,  Code  Civ.  Proc.  Bill  of  particulars  is  provided  for  in  this  act 
by  section  145,  subdivisions  1  and  6,  although  there  is  no  provision 
for  a  demand  for  the  same. 

Account  and  bill  of  particulars. —  As  to  the  difference  between  them, 
see  Giles  v.  Jietz,  15  Abb.  Pr.  285,  which  refers  to  the  latter,  and  Wil- 
liams v.  Shaw,  4  Abb.  Pr.  209,  to  the  former. 

Debits  and  credits  should  be  given  in  an  itemized  statement.  Dowd- 
ney  v.  Volkening,  37  N.  Y.  Super.  313. 

Detailed  statement. —  The  copy  account  need  not,  it  seems,  give  a 
detailed  statement  of  the  amounts  received  from  the  adverse  party 
on  such  account.  Williams  v.  Shaw,  4  Abb.  Pr.  209;  Ryckman  v. 
Haight,  15  Johns.  222;   Gillies  v.  Betz,  15  Abb.  Pr.  285. 

For  further  notes  applicable  to  this  section,  see  notes  to  §  145, 
"  Bill  of  particulars." 

§  166.  Amendment  of  pleadings —  The  court  must,  upon 
application,  allow  a  pleading  to  be  amended,  at  any  time, 
if  substantial  justice  will  be  promoted  thereby.  Where  a 
party  amends  his  pleading,  after  joinder  of  issue,  or  pleads 
over  upon  the  decision  of  a  demurrer,  and  it  is  made  to 
appear  to  the  satisfaction  of  the  court,  by  oath,  that  an 
adjournment  is  necessary  to  the  adverse  party,  in  conse- 
quence of  the  amendment  or  pleading  over,  an  adjournment 
must  be  granted.  The  court  may  also,  in  its  discretion, 
require,  as  a  condition  of  allowing  an  amendment,  the  pay- 
ment of  costs  to  the  adverse  party. 

Notes  to  section   166. 

This  section  is  substantially  the  same  as  section  2944  of  the  Code 
of  Civil  Procedure,  relating  to  justices'  courts,  which  was  made  ap- 
plicable by  section  1347  of  the  Consolidation  Act  (Laws  1882,  chap. 
410). 


§  167.  Pleadings.  273 

Allowance  of  amendment  is  mandatory  upon  the  court. —  It  is  man- 
datory to  allow  a  pleading  to  be  amended  at  any  time  before  trial,  or 
during  the  trial,  if  substantial  justice  will  be  promoted  thereby,  and 
a  refusal  to  allow  amendment  in  a  proper  case  is  appealable.  King  v. 
Dorman,  26  Misc.  Rep.  133,  55  N.  Y.  Supp.  876.  See  also  Milch  v.  The 
Westchester,   etc.,   13   Misc.  Rep.  231. 

Where  the  complaint  was  for  coal  sold  and  delivered  on  the  order 
of  defendant's  wife, —  Held,  that  the  justice  should  have  permitted  an 
amendment  at  the  trial  so  as  to  make  the  complaint  for  necessaries 
furnished.     Thedford  v.  Reade,  28  Misc.  Rep.  563,  59  N.  Y.  Supp.  537. 

Demurrer. —  If  the  demurrer  is  well  founded  the  court  must  permit 
an  amendment.  Morris  v.  Hunken,  40  App.  Div.  129,  57  N.  Y.  Supp. 
712.  See  also  Stem  v.  Drinker,  2  E.  D.  Smith,  402;  Glass  v.  Kewlson, 
3  Abb.  Pr.  100;  Hillard  v.  Austin,  17  Barb.  141. 

Justice  volunteering. —  It  is  not  proper  for  the  justice  to  volunteer 
to  make  amendments  not  moved  for  by  either  party.  Lloyd  v.  Fox,  1 
E.  D.  Smith,  101 ;   Enright  v.  Seymour,  8  N.  Y.  St.  Rep.  356. 

Material  variance  between  the  pleading  and  proof;  how  provided  for, 
and  amendment  on  terms.     See  §   172. 

Mistake  in  name  of  defendant  is  waived  if  not  pleaded.  City  of 
Neiv  York  v.  Union  Ry.  Co.,  31  Misc.  Rep.  451,  64  N.  Y.  Supp.  483. 

New  cause  of  action,  or  new  defense,  may  be  introduced  by  amend- 
ment, though  a  reasonable  adjournment  should  be  granted,  if  required, 
and  such  costs  imposed  as  are  proper.  Hawkes  v.  Burke,  34  Misc.  Rep. 
189,  68  N.  Y.  Supp.  798. 

Code  Civ.  Proc,  §  3377,  subd.  6,  extending  to  all  courts  the  pro- 
visions of  section  723,  authorizing  amendments  not  substantially  chang- 
ing the  cause  of  action  or  defense,  does  not  limit  the  power  of  amend- 
ment given  to  municipal  courts  by  section  2944,  authorizing  any 
amendment ;  but  a  municipal  court  may  grant  an  amendment,  though 
involving  a  new  cause  of  action  or  defense.  Shirtcliffc  v.  Wall,  68 
App.  Div.  375.  74  X.  Y.  Supp.  (10S  St.  Rep.)  189.  See  also  Doughty 
v.  Crozier,  9  Abb.  Pr.  411;  Cooper  v.  Kinney,  6  Abb.  Pr.  380;  Hatches 
v.  Burke,  34  Misc  Rep.  189.  To  the  contrary,  see  Batch  v.  Wure- 
burger,  9  Misc.  Rep.  74;   Dotes  v.  Morrison,  2   Misc.  Rep.  54. 

Payment. —  A  justice  of  this  court  has  power  to  permit  an  amend- 
ment at  the  trial  setting  up  payment.  Majansky  v.  Lipman,  33  Misc. 
Rep.   747.   67   X.   Y.   Supp.   84. 

Tort  and  contract. —  This  court  has  power  to  allow  an  amendment  of 
a  complaint  for  conversion,  changing  the  allegations  from  tort  to  those 
of  breach  of  contract.  Doughty  v.  Crozier,  9  Abb.  Pr.  411;  Cooper  v. 
Kinney,  6  Abb.  Pr.  380;   Hawkes  v.  Burke,  34  Misc.  Rep.  189. 

§  167.  Private  statute;  how  pleaded. —  In  pleading  a  pri- 
vate statute,  or  a  right  derived  therefrom,  it  is  sufficient  to 

18  " 


274  Pleadings.  §§  168,  169,  170. 

designate  the  statute  by  its  chapter,  year  of  passage  and 
title,  or  in  some  other  manner  with  convenient  certainty,, 
without  setting  forth  any  of  the  contents  thereof. 

Notes  to  section  167. 

This  section  is  the  same  as  section  530  of  the  Code  of  Civil  Proce- 
dure, applicable  to  courts  of  record. 

For  notes  under  the  subject  of  "Pleading,"  see  §  149,  "Complaint;  " 
§   150,  "  Answer,  what  to  contain." 

§  168.  Judgments;  how  pleaded. —  In  pleading  a  judgment, 
or  other  determination  of  a  court  or  officer  of  special  juris- 
diction, it  is  not  necessary  to  state  the  facts  conferring  juris- 
diction; but  the  judgment  or  determination  may  be  stated 
to  have  been  duly  given  or  made.  If  that  allegation  is  con- 
troverted the  party  pleading  must  on  the  trial  establish  the 
facts  conferring  jurisdiction. 

Notes  to  section  168. 

This  section  is  the  same  "as  section  532  of  the  Code  of  Civil  Proce- 
dure, applicable  to  courts  of  record. 

For  further  notes  upon  pleading,  see  §§   149  and  150. 

§169.  Conditions  precedent;  how  pleaded. —  In  pleading 
the  performance  of  a  condition  precedent  in  a  contract  it  is 
not  necessary  to  state  the  facts  constituting  performance; 
but  the  party  may  state  generally  that  he  or  the  person 
whom  he  represents  duly  performed  all  the  conditions  on 
his  part.  If  that  allegation  is  controverted  he  must  on  the 
trial  establish  performance. 

Notes  to  section  169. 

This  section  is  the  same  as  section  533  of  the  Code  of  Civil  Proce- 
dure, relating  to  courts  of  record. 

For  further  notes  upon  pleading,  see  §§  149  and  150. 

170.  Pleadings  to  be  liberally  construed. —  The  allega- 
tions of  a  pleading  must  be  liberally  construed,  with  a  view 
of  substantial  justice  between  the  parties. 


§§  171,  172,  173,  174.     Pleadings.  275 

Note    to   section    170. 

This  section  is  the  same  as  section  519  of  the  Code  of  Civil  Proce- 
dure, relating  to  courts  of  record. 

§  171.  Immaterial  variance  in  pleading  to  be  disregarded 

A  variance  between  an  allegation  in  a  pleading  and  the 
proof,  must  be  disregarded  as  immaterial,  unless  the  court 
is  satisfied  that  the  adverse  party  has  been  misled  thereby, 
to  his  prejudice. 

Note   to  section    171. 

This  section  is  the  same  as  section  2943  of  the  Code  of  Civil  Pro- 
cedure, relating  to  justices'  courts,  which  was  made  applicable  to  this 
court  by  section  1347  of  the  Consolidation  Act  (Laws  1882,  chap. 
410). 

§  172.  Material  variances;  how  provided  for. —  A  variance 
between  an  allegation  in  a  pleading  and  the  proof  is  not 
material  unless  it  has  actually  misled  the  adverse  party  to 
his  prejudice  in  maintaining  his  action  or  defense  on  the 
merits.  If  a  party  insists  that  he  has  been  misled  that  fact 
and  the  particulars  in  which  he  has  been  misled  must  be 
proved  to  the  satisfaction  of  the  court.  Thereupon  the 
court  may  in  its  discretion  order  the  pleading  to  be  amended 
on  such  terms  as  it  deems  just. 

Note   to   section    172. 

This  section  is  the  same  as  section  539  of  the  Code  of  Civil  Pro- 
cedure, applicable  to  courts  of  record. 

§  173.  What  to  be  deemed  a  failure  of  proof Where,  how- 
ever, the  allegation  to  which  the  proof  is  directed  is  un- 
proved, not  in  some  particular  or  particulars  only,  but  in 
its  entire  scope  and  meaning,  it  is  not  a  case  of  variance 
within  the  last  two  sections,  but  a  failure  of  proof. 

Note   to   section    173. 

This  section  is  the  same  as  section  541  of  the  Code  of  Civil  Pro- 
cedure, applicable  to  courts  of  record. 

§  174.  Partial  defenses. —  A  partial  defense  may  be  set 
forth,  but  it  must  be  expressly  stated  to  be  a  partial  defense 


276  Pleadings.  §§  17.".,  L76L 

to  the  entire  complaint,  or  to  one  or  more  separate  causes 
of  action  therein  set  forth.  On  a  demurrer  thereto  the 
question  is  whether  it  is  sufficient  for  that  purpose.  Matter 
tending  only  to  mitigate  or  reduce  damages  in  an  action  to 
recover  damages  for  a  personal  injury,  or  an  injury  to  prop- 
erty, is  a  partial  defense  within  the  meaning  of  this  section. 

Note    to   section    174. 

This  section  is  substantially  the  same  as  section  508  of  the  Code 
of  Criminal  Procedure,  relating  to  courts  of  record. 

§  175.  Complaint  in  actions  by  or  against  corporations. —  In 
an  action  brought  by  or  against  a  corporation,  the  complaint 
must  aver  that  the  plaintiff,  or  the  defendant,  as  the  case 
may  be,  is  a  corporation;  must  state  whether  it  is  a  domestic 
corporation  or  a  foreign  corporation;  and,  if  the  latter,  the 
state,  country  or  government,  by  or  under  whose  laws  it 
was  created.  But  the  plaintiff  need  not  set  forth,  or  speci- 
ally refer  to,  any  act  or  proceedings  by  or  under  which  the 
corporation  was  created. 

Notes  to   section    175. 

This  section  is  the  same  as  section  1775  of  the  Code  of  Civil  Pro- 
cedure,  relating  to  courts  of  record. 

For  notes  as  to  "Complaint"  and  "Answer,"  see  §§  149  and  150. 

§  17';.  When  proof  of  corporate  existence  unnecessary. —  In 
an  action  brought  by  or  against  a  corporation,  the  plaintiff 
need  not  prove,  upon  the  trial,  the  existence  of  the  corpora- 
tion unless  the  answer  is  verified  and  contains  an  affirmative 
allegation  that  the  plaintiff,  or  the  defendant,  as  the  case 
may  be,  is  not  a  corporation. 

Notes   to  section    176. 

This  section  is  the  same  as  section  1776  of  the  Code  of  Civil  Pro- 
cedure,  relating  to  courts  of  record. 

Proof  of  rest  of  case  must  however  he  mr.de,  although  the  defend- 
ant is  in  default.     Croicn,  etc.    v.  Fitzgerald,  14  N.  Y.  St.  Rep.  427. 


§§  177,  178.  Pleadings.  l'77 

§  177.  Misnomer;  when  waived. —  In  an  action  or  special 
proceeding  brought  by  or  against  a  corporation,  the  defend- 
ant is  deemed  to  have  waived  any  mistake  in  the  statement 
of  the  corporate  name,  unless  the  misnomer  is  pleaded  in  the 
answer  or  other  pleading  in  the  defendant's  behalf. 

Note    to   section    177. 

This  section  is  the  same  as  section  1777  of  the  Code  of  Civil  Pro- 
cedure, relating  to  courts  of  record.  See  notes  to  "Pleadings;" 
"  Complaint,"  §   149,  and  "Answer,"  §   150. 

§  178.  Pleadings  in  actions  on  bastardy  bonds. —  The  plead- 
ings and  proceedings  in  actions  in  which  the  people  of  this 
state  are  a  party,  where  snch  actions  are  brought  by  the  over- 
seers of  the  poor  or  the  commissioners  of  public  charities 
and  correction,  upon  bastardy  or  abandonment  bonds,  shall 
be  the  same  as  in  actions  brought  on  bonds  with  conditions 
other  than  for  the  payment  of  money,  and  for  any  breach 
of  the  condition  of  such  bond  given  in  cases  of  bastardy 
which  shall  happen  after  the  recovery  of  any  damages  or 
the  commencement  of  any  suit,  the  municipal  court  in  the 
district  in  which  the  action  was  originally  brought  shall 
have  power  to  issue  a  new  summons,  and  upon  the  return 
thereof  to  ascertain  the  amount  of  damages  arising  from 
said  breach,  and  to  give  judgment  accordingly;  and  in  suits 
upon  bonds  given  in  abandonment  cases  the  court  shall  have 
the  same  power  as  to  requiring  further  security  or  commit- 
ting defendant  in  default  thereof,  as  are  conferred  by  law, 
upon  the  judges  of  courts  of  record  in  similar  cases. 

Note  to  section  178. 

This  section  is  substantially  the  same  as  section  1348  of  the  Con- 
solidation Act  (Laws  1882,  chap.  410),  which  was  the  second  clause 
of  section  1,  chapter  389,  Laws  1862.  It  assumes  that  section  1,  sub- 
division 4,  has  given  this  court  jurisdiction  of  actions  upon  bastardy 
and  abandonment  bonds,  which  it  has  not,  as  no  case  where  it  is 
prescribed  by  law  that  such  an  action  can  be  maintained  can  be  found. 
Laws  1862,  chap.  389,  §  1,  was  such  a  case  where  it  was  prescribed 
by  law  that  such  an  action  could  be  maintained,  but  that  law  was 
repealed  by  Laws  1880,  chap.  245,  and  Laws   1881,  chap.  537,  and  no 


278  Pleadings.  §  179. 

law  prescribing  that  such  an  action  can  be  maintained  has  since 
been  enacted  in  place  of  it,  or  otherwise.  See  notes  to  §  1,  subd.  4,  as 
to  whether  this  court  has  jurisdiction  in  an  action  upon  a  bastardy 
or  abandonment  bond.  See  §  339.  See  also  §  30  as  to  "  Alias  sum- 
mons.'' 

§  179.  Answer  of  title. —  The  defendant  may,  either  with 
or  without  other  matter  of  defense,  set  forth  in  his  answer 
facts  showing  that  the  title  to  real  property  will  come  in 
question.  Such  an  answer  must  be  in  writing,  and  it  must 
be  signed  by  the  defendant,  or  his  attorney  or  agent,  and 
delivered  to  the  court.  The  court  must,  thereupon,  counter- 
sign the  answer,  and  deliver  it  to  the  plaintiff. 

Notes   to   section   179. 

This  section  is  the  same  as  section  1349  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  which  is  the  same  as  section  2951  of  the 
Code  of  Civil  Procedure,  relating  to  justices'  courts. 

This  defense  is  not  as  often  interposed  in  this  court  as  it  is  in 
courts  of  justices  of  the  peace  in  the  country,  and  therefore  the  prac- 
titioner is  referred  to  Cowen's  Treatise,  Throop's  New  York  Justices' 
Manual,  and  the  decisions  under  sections  2951  to  2958,  both  inclusive, 
of  the  Code  of  Civil  Procedure,  under  "Courts  of  justices  of  the  peace 
and  proceedings  therein."     See  also  subd.  2,  §  2863,  of  said  Code. 

Amended  answer. —  An  answer  of  title  may  be  interposed  by  an 
amended  answer  after  an  adjournment.  Hinds  v.  Page,  6  Abb.  N.  S. 
58;  Weeks  v.  Strdble,  30  How.  123. 

Board  of  health. — By  charter,  §  1262,  it  is  provided  that  the  "  court 
shall  not  lose  jurisdiction  of  any  action  by  reason  of  a  plea  that 
title  to  real  estate  is  involved,  provided  the  defendant  is  sought 
by  the  pleadings  to  be  charged  in  said  action  on  any  of  the  grounds 
mentioned  in  this  chapter,  other  than  by  virtue  of  ownership  of  such 
real  estate." 

No  jurisdiction. —  By  section  2  of  this  act  this  court  has  no  jurisdic- 
tion where  the  title  to  real  property  comes  in  question,  except  in 
summary  proceedings.  See  also  Quinn  v.  Quinn,  46  App.  Div.  241 ; 
huge  v.  Crosby,  35  Misc.  Rep.  117.  Where  the  parties  consent  to  try 
cause  where  title  is  in  issue,  it  will  not  confer  jurisdiction  upon  the 
justice.     Stryker  v.  Motr.   6  Wend.  645,  4  How.  44. 

Retention  of  undertaking. —  Where  the  answer  of  title  is  in  proper 
form,  a  retention  of  the  undertaking  is  sufficient  to  oust  the  court  of 
jurisdiction.     Manfredi  v.  Wiederman,   14  Misc.  Rep.  342. 

When  title  comes  in  question. —  Where,  in  an  action  by  an  assignee 
of  a  lessor  of  a  lease  in  fee,  to  recover  rent,  the  complaint  alleged  that 


§  180.  Pleadings.  279 

the  plaintiff  became  the  owner  of  the  rent,  and  seized  in  fee  of  the 
estate,  and  the  defendant  denied  all  allegations  of  the  complaint.  Main 
v.  Cooper,  26  Barb.  468. 

Where  one  is  charged  with  liability  arising  out  of  being  owner  of 
land,  and  he  disclaims  being  the  owner,  this  raises  a  question  of  title. 
Ryan  v.  Harrigan,  9  Hun,  520;   Alleman  v.  Bey,  49  Barb.  641. 

An  allegation  that  the  defendants  are  the  owners  in  fee  of  the  prem- 
ises, at  the  time  of  the  alleged  trespass,  is  sufficient  to  raise  the  ques- 
tion of  title  to  real  property.  Manfredi  v.  Wiederman,  14  Misc.  Rep. 
342. 

Title  embraces  the  right  to  possession  and  everything  but  the  bare, 
naked  possession.  Ebbe  v.  Quackenbush,  6  Hill,  537.  See  also  Rath- 
bone  v.  McConnell,  21  N.  Y.  466;  Clow  v.  Van  Loan,  4  Hun,  184. 

When  title  does  not  come  in  question. —  The  introduction  of  a  deed 
to  establish  some  other  fact  than  title  does  not  raise  a  question  of 
title.  Xicols  v.  Bain,  27  How.  286;  Heintz  v.  Dellinger,  28  How.  39; 
s.   c,  42   Barb.  53. 

Title  does  not  come  in  question  in  a  suit  to  recover  a  tax  paid  by 
mistake  by  the  plaintiff  on  a  lot  of  defendant,  the  defendant's  title 
not  being  disputed  on  the  trial.     Nixon  v.  Jenkins,   1  Hilt.  318. 

In  the  trial  of  an  action  no  question  of  title  to  certain  realty  arose 
on  the  pleadings ;  plaintiff  however  sought  to  prove  his  possession 
by  oral  testimony.  Defendant  objected  on  the  ground  that  plaintiff's 
right  to  possession  was  put  in  issue,  whereupon  plaintiff  duly  proved 
his  title  thereto.  The  trial  judge  also  certified  that  a  claim  of  title 
to  realty  came  in  question.  Held,  that,  as  title  was  proven  in  answer 
to  defendant's  objection,  he  cannot  now  say  that  such  objection  was 
unfounded,  and  that  the  question  of  title  did  not  property  arise  on  the 
trial.  Foster  v.  Romer,  15  Week.  Dig.  487.  See  also  Collins  v.  Adams, 
10  X.  Y.  St.  Rep.  48. 

Where  the  complaint  is  so  drawn  that  the  defendant  can  set  up  a 
title  in  his  answer,  but  he  omits  to  do  so,  the  justice  retains  his 
jurisdiction,  and  the  defendant  will  be  precluded  from  drawing  it 
in  question  on  the  trial.  Adams  v.  Rivers,  11  Barb.  390;  Fred,  d  8. 
Plankroad  Co.  v.  Wait,  27  Barb.  214;   Broun  v.  Scofield,  8  Barb.  239. 

The  question  of  actual  possession  is  not  a  question  of  title.  Rath- 
hour  v.  McConnell,  21  N.  Y.  466;  Clow  v.  Van  Loan,  4  Hun.  1S4.  See 
also  Ebbe  v.   Quackenbush,  6  Hill,  537. 

Penalty  for  failure  to  deliver  undertaking  is  that  the  court  has 
jurisdiction  to  proceed,  and  the  defendant  is  precluded  in  his  de- 
fense from  denying  the  title  in  question.      See   §   183. 

§  180.  Defendant  in  answer  of  title  to  deliver  undertaking. 
— In  the  case  specified  in  the  last  section,  the  defendant 
must  also  deliver  to  the  court,  with  the  answer,  a  written 


280  Pleadings.  §§  181,  182. 

undertaking,  executed  by  one  or  more  sureties,  approved  by 
the  court,  to  the  effect  that,  if  the  plaintiff,  within  twenty 
days  thereafter,  deposits  with  the  court  a  summons  and 
complaint  in  a  new  action,  for  the  same  cause,  to  be  brought 
in  the  proper  court,  as  prescribed  in  the  next  section,  the 
defendant  will,  within  twenty  days  after  the  deposit,  give 
a  written  admission  of  the  service  thereof.  Where  the  de- 
fendant was  arrested  in  the  action  before  the  court,  the 
undertaking  must  further  provide  that  he  wall,  at  all  times, 
render  himself  amenable  to  any  mandate  which  may  be 
issued  to  enforce  a  final  judgment  in  the  action  so  brought. 
If  the  defendant  fails  to  comply  with  the  undertaking,  the 
sureties  are  liable  thereupon  to  any  amount  for  which  judg- 
ment might  have  been  rendered  by  the  municipal  court,  if 
the  answer  and  undertaking  had  not  been  delivered. 

Notes  to   section    180. 

This  section  is  the  same  as  section  1350  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  substituting  the  word  '-court"  for  "justice," 
which  is  the  same  as  section  '2952  of  the  Code  of  Civil  Procedure,  relat- 
ing to  justices'  courts. 

Defense. —  The  defense  of  title  will  not  avail,  unless  an  undertaking 
is  furnished.  Little  v.  Dean,  34  N.  Y.  452.  See  §  2,  subd.  1,  and 
notes. 

§  181.  New  action  to  be  brought  in  supreme  court The 

court,  in  which  a  new  action  is  to  be  brought,  as  prescribed 
in  the  last  section,  is  the  supreme  court- 
Note   to   section    181. 

This  section  is  the  same  as  section  1351  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  which  is  the  same  as  section  2953  of  the  Code 
of  Civil  Procedure,  relating  to  justices'  courts. 

§  182.  Old  action;  thereupon  discontinued. —  Upon  the  de- 
livery of  the  undertaking  to  the  court,  the  action  is  discon- 
tinued, and  each  party  must  pay  his  own  costs.  If  the  plain- 
tiff fails  to  deposit  with  the  court  a  summons  and  complaint 
in  the  new  action,  before  the  expiration  of  twenty  days  after 
the  delivery  of  the  undertaking,  the  defendant  may  main- 


§§  183,  184.  Pleadings.  281 

tain  an  action  against  the  plaintiff  to  recover  costs  before 
the  court. 

Notes   to  section    182. 

This  section  is  the  same  as  section  1352  of  the  Consolidation  Act 
(Laws  1882.  chap.  410)  and  section  2954  of  the  Code  of  Civil  Proce- 
dure, applicable  to  justices'  courts,  with  the  provision  as  to  costs 
omitted  so  as  to  conform  to  section  332,  subdivision  2,  of  this  act. 

Costs  after  discontinuance  upon  answer  of  title. —  See  §  337. 

§  183.  Penalty  for  failure  to  deliver  undertaking. —  If  the 
undertaking  is  not  delivered  to  the  court,  it  has  jurisdiction 
of  the  action,  and  must  proceed  therein,  and  the  defendant 
is  precluded  in  his  defense,  from  drawing  the  title  in 
question. 

Note   to   section    183. 

This  section  is  the  same  as  section  1353  of  the  Consolidation  Act 
(Laws  1882,  chap.  410)  and  section  2955  of  the  Code  of  Civil  Pro- 
cedure, applicable  to  justices'  courts,  with  the  exception  of  the  word 
'•  justice  "  changed  to  the  word  "  court." 

§  184.  Title  appearing  from  plaintiff's  own  showing. —  If, 
however,  it  appears  upon  the  trial,  from  the  plaintiff's  own 
showing,  that  the  title  to  real  property  is  in  question,  and 
the  title  is  disputed  by  the  defendant,  the  court  must  dis- 
miss the  complaint,  with  costs,  and  render  judgment  against 
the  plaintiff  accordingly. 

Notes   to   section    184. 

This  section  is  the  same  as  section  1354  of  the  Consolidation  Act 
(Laws  1882,  chap.  410)  and  section  2956  of  the  Code  of  Civil  Proce- 
dure, relating  to  justices'  courts,  with  the  exception  of  the  word 
"  justice  "  changed  to  the  word  "  court." 

Dismissal. —  In  all  cases,  even  where  the  defenaant  omits  to  plead 
title,  if  it  appears  on  the  trial,  from  the  plaintiff's  own  showing,  that 
the  title  comes  in  question,  and  shall  be  disputed  by  the  defendant,  the 
justice  must  dismiss  the  action.  11  Barb.  390,  20  Wend.  96,  6  Hill, 
44,  271. 

On  a  motion  to  dismiss,  the  defendant  must  specifically  raise  the 
point  that  the  title  to  real  property  comes  in  question.  Brown  v.  Sco- 
field,  8  Barb.  239. 

Costs  where  title  to  real  property  in  question. —  See  §  338. 


282  Pleadings.  §§  186, 187. 

§  185.  Same  cause  of  action,  and  defense  in  new  action In 

the  new  action,  to  be  brought  after  an  action  before  a  court 
is  discontinued,  by  the  delivery  of  an  answer  and  an  under- 
taking, as  prescribed  in  the  last  six  sections,  the  plaintiff 
must  complain  for  the  same  cause  of  action  only  upon  which 
he  relied  before  the  court,  and  the  defendant's  answer  must 
set  up  the  same  defense  only  which  he  made  before  the 
court.  If  the  action  is  to  recover  a  chattel  which  was  re- 
plevied in  the  municipal  court,  each  undertaking,  given  in 
the  municipal  court,  continues  to  be  valid  in,  and  is  applica- 
ble to,  the  new  action. 

Note   to   section    185. 

This  section  is  the  same  as  section  1355  of  the  Consolidation  Act 
(Laws  1882,  chap.  410)  and  section  2957  of  the  Code  of  Civil  Proce- 
dure, applicable  to  justices'  courts,  except  the  word  "  justice  "  stricken 
out,  and  the  word  "  court  "  changed  therefor,  and  "  justice's  court "  to 
"  municipal  court." 

§  186.  Answer  to  title  interposed  as  to  only  one  or  more  of 
several  defenses;  proceedings  thereupon. —  Where  in  an  action 
before  the  court,  the  plaintiff  has  two  or  more  causes  of  ac- 
tion, and  the  defense  that  the  title  to  real  property  will  come 
in  question,  is  interposed  as  to  one  or  more,  but  not  as  to  all 
of  them,  the  defendant  may  deliver  an  answer  and  under- 
taking as  prescribed  in  this  article,  with  respect  to  the  cause 
or  causes  of  action  only,  in  which  title  will  so  come  in  ques- 
tion. Whereupon  the  court  must  discontinue  the  action  as 
to  those  causes  of  action  only,  the  plaintiff  may  commence 
a  now  action  therefor  in  the  proper  court,  and  the  original 
action  must  proceed  as  to  the  other  causes. 

Note    to   section    186. 

This  section  is  the  same  as  section  1356  of  the  Consolidation  Act 
(Laws  1882,  chap.  410)  and  section  2858  of  the  Code  of  Civil  Proce- 
dure, applicable  to  justices'  courts,  with  the  exception  of  the  word 
"  justice  "  changed  to  "  court,"  and  this  act  is  referred  to. 

§  187.  Interpleader  by  order  in  certain  cases —  A  defendant 
against  whom  an  action  to  recover  upon  a  contract,  or  an 


§  1ST.  Pleadings.  283 

action  to  recover  a  chattel,  is  pending,  may,  at  any  time 
before  answer,  upon  proof,  by  affidavit,  that  a  person,  not 
a  party  to  the  action,  makes  a  demand  against  him  for  the 
same  debt  or  property,  without  collusion  with  him,  apply 
to  the  court,  upon  notice  to  that  person,  and  the  adverse 
party,  for  an  order  to  substitute  that  person,  in  his  place, 
and  to  discharge  him  from  liability  to  either,  on  his  paying 
into  court  the  amount  of  the  debt,  or  delivering  the 
possession  of  the  property,  or  its  value,  to  such  person  as 
the  court  directs;  or  upon  it  appearing  that  the  defendant 
disputes,  in  whole  or  in  part,  the  liability  as  asserted  against 
him  by  different  claimants,  or  that  he  has  some  interest  in 
the  subject  matter,  of  the  controversy  which  he  desires  to 
assert,  his  application  may  be  for  an  order  joining  the  other 
claimant  or  claimants,  as  co-defendants  with  him  in  the  ac- 
tion. The  court  may,  in  its  discretion,  make  such  order, 
upon  such  terms  as  to  costs  and  payments  into  court  of  the 
amount  of  the  debt,  or  part  thereof,  or  delivery  of  the  pos- 
session, of  the  property,  or  its  value  or  part  thereof,  as  may 
be  just  and  thereupon  the  entire  controversy  may  be  deter- 
mined in  the  action. 

Notes  to  section  187. 

This  section  is  the  same  as  section  820  of  the  Code  of  Civil  Pro- 
cedure, the  words  "  or  an  action  of  ejectment  "  being  omitted,  because 
this  court  has  no  jurisdiction  in  such  an  action. 

Commiscion  to  take  testimony. —  In  an  action  to  procure  an  inter- 
pleader, where  one  of  the  defendants  denied  the  plaintiff's  right  to 
that  relief,  held,  that  a  commission  to  take  testimony  out  of  the  State 
might  be  issued,  but  the  testimony  must  be  confined  to  the  questions 
arising  en  the  right  to  interplead,  and  not  upon  the  merits  of  the  claim. 
Kemp  v.  Dickinson,  22  Hun,  593. 

Discretionary. —  The  application  is  addressed  to  the  discretion  of  the 
court,  and  ought  not  to  be  granted  where  it  appears  on  the  face  of  the 
papers  that  the  claim  of  one  of  the  claimants  is  clearly  unfounded. 
Pustet  v.  Flannelly,  60  How.  Pr.  67. 

It  must  be  shown  that  there  is  a  reasonable  foundation  for  the  claim 
made  by  the  proposed  party,  and  that  the  stakeholder  cannot  determine 
which  to  pay  to  without  peril.  Steiner  v.  East  River  Savings  Institu- 
tion, 60  App.  Div.  232,  70  N.  Y.  Supp.  223. 

Doctrine. — As  to  the  general  doctrine  of  interpleader,  see  Dows  v. 
Kidder.  84  N".  Y.  121;  Barnes  v.  The  Mayor,  27  Hun,  236. 


28  ±  Pleadings.  §  1ST. 

History  or  review  of  this  subject  by  the  courts,  bee  the  case  of 
Beer  V.  Bcnner,  11  Daly,  229. 

Judgment  creditors. —  A  defendant,  sued  for  money  collected  by  him 
as  agent  for  the  plaintiff's  assignor,  is  not  entitled  to  an  order  to  inter- 
plead, upon  an  affidavit  stating  that  other  persons  claim  the  same  money 
under  judgments  against  the  assignor.  Delancy  v.  Murphy,  24  Hun, 
503;  Sigel  v.  Cohen,  2     Misc.  Rep.  368. 

Order  for  practice. —  Where  an  interpleader  is  ordered,  the  order 
should  require  the  party  brought  in  by  the  interpleader  to  appear  and 
answer  a  complaint  served  upon  him  with  the  order,  in  the  same  time 
that  a  defendant  is  required  to  answer  a  summons,  and  should  provide 
that  the  money  in  court  shall  be  paid  to  the  plaintiff  in  case  of  his 
failure  to  appear  and  answer.  If  the  party  appear  and  answer,  the 
issue  raised  may  be  tried  by  the  court,  unless  a  jury  be  demanded  at 
the  joinder  of  issue.  Upon  the  entry  of  a  judgment  the  money  must 
be  paid  to  the  prevailing  party,  unless  an  undertaking  sufficient  to 
stay  proceedings  be  given  and  costs  should  be  awarded  against  the 
losing  party.     McElroy  v.  Baer  et  al.,  13  Daly,  442. 

Liability. —  An  interpleader  by  order  will  not  be  granted  where  the 
defendant  contests  his  liability.  Brcnnan  v.  Liverpool  &  L.  cG  G.  Ins. 
Co.,  12  Hun,  62.  Or  where  he  has  a  good  defense  as  to  one  of  the 
claimants.     Conner  v.   ~\Yebcr,   12  Hun,  580. 

Life  insurance. —  Where  the  widow  and  an  assignee  of  a  deceased 
policyholder  claimed  the  amount  insured  upon  the  life  of  the  deceased 
by  a  life  insurance  company,  and  the  latter  sued  the  company,  the 
widow  was  substituted  as  defendant  by  an  order  of  interpleader.  Foir- 
ler  v.  Butterly,  78  N.  Y.  68.  See  also  Lateer  v.  Prudential  Ins.  Co., 
64  App.  Div.  423,  72  N.  Y.  Supp.  235. 

Merchandise. —  Where  the  plaintiff  purchased  from  the  defendant  A. 
a  quantity  of  merchandise,  and  the  defendant  R.,  the  receiver  of  a  cor- 
poration, presented  a  bill  for  the  merchandise  and  demanded  payment 
therefor,  threatening  to  sue  him  for  the  amount, — Held,  that  an  action 
for  an  interpleader  would  lie.  B.  d-  0.  R.  R.  Co.  v.  Arthur,  10  Abb. 
N.  C.  147. 

Warehouseman. —  The  privilege  of  Laws  1805,  chap.  633,  relieving  a 
warehouseman  from  being  made  a  party  to  an  action,  unless  he  claims 
an  interest  other  than  a  lien  for  warehouse  charges,  cannot  be  invoked 
by  a  party  whom  it  is  sought  to  bring  in  in  the  place  of  the  warehouse- 
man, as  defendant.  Follett,  etc.  v.  Albany,  etc.,  61  App.  Div.  296,  70 
N.  Y.  Supp.  474. 

Note. —  There  are  no  sections  from  187  to  193. 


§  193.      Adjournments  ;  Subpcenas  ;  Witnesses.  2S5 

TITLE  V. 

Proceedings  between    Joinder  of  Issue  and  Trial. 

Article     I.  Adjournments;   subpoenas;   attendance  of  witnesses. 
II.  Commissions  and   depositions. 

ARTICLE  I. 

Adjournments;   Subpoenas;   Attendance  of  Witnesses. 

Section   193.  Trial  may  be  adjourned,  when. 

194.  Adjournment  longer  than  eight  days;   undertaking. 

195.  Conditions  may  be  imposed. 

196.  Attendance  of  witnesses. 

197.  How  subpoena  served. 

198.  Warrant  of  attachment  against  defaulting  witness. 

199.  How  executed;  fees  thereupon. 

200.  Defaulting   witness   liable   for   damages,   and    penalty   of 

fifty  dollars. 

§  193.  Adjournments;  trial  may  be  adjourned;  when. —  The 
trial  of  the  action  may  be  adjourned  by  the  court,  or  on  the 
application  of  either  party,  for  a  period  not  exceeding  eight 
days  at  any  one  adjournment,  unless  the  defendant  is  under 
arrest,  in  which  case  it  shall  not  be  adjourned  to  exceed 
forty-eight  hours,  except  upon  the  application  of  the  defend- 
ant, in  accordance  Avith  the  provisions  of  section  sixty- 
seven  of  this  act.  Except  that  an  adjournment  for 
more  than  forty-eight  hours  where  the  defendant  is  un- 
der arrest,  may  be  granted  on  application  of  the  plain- 
tiff by  discharging  the  defendant  from  custody  and  the 
action  may  then  proceed  notwithstanding  such  discharge; 
and  the  defendant  shall  be  subject  to  arrest  on  the  exe- 
cution, in  the  same  manner  as  if  he  had  not  been  so  dis- 
charged. The  trial  may  be  adjourned  for  a  longer  period 
by  consent,  or  where  neither  party  objects  to  the  same,  ex- 
cept as  otherwise  expressly  prescribed  in  this  act. 

Notes  to  section  193. 

This  section  is  taken  from  sections  1362  and  1363  of  the  Consolidation 
Act    (Laws  1882,  chap.  410),  which  were  the  same  as  Laws  1857,  chap. 


286         Adjournments  j   Subp(enas;   Witnesses.      ^193. 

344,  §§  25  and  2(i,  changed  to  suit  section  07,  "  Undertaking  by  ar- 
rested  defendant  on  applying  for  adjournment,"  and  also  by  adding 
to  the  end  thereof  the  words  "  except  as  otherwise  expressly  prescribed 
by  this  act." 

The  following  sections  of  this  act  also  relate  to  adjournment: 

Section  67,  as  above. 

Section  194.  "Adjournment  longer  than  eight  days;   undertaking.'' 

Section  195.  "  Conditions  may  be  imposed." 

Section  208.  "  Adjournment  where  commission  granted." 

Section  238.  "  Adjournments  after  return  of  jury." 

Section  336.  "  Costs  on  adjournment." 

Absence  of  a  desired  witness  is  not  ground  for  claiming  a  postpone- 
ment if  there  has  been  no  subpoena  or  other  effort  made  to  secure  his 
attendance.  Keller  v.  Feldman,  29  Abb.  N.  C.  427;  s.  c,  49  N.  Y.  St. 
Rep.  718;  Cahil  v.  Hilton,  31  Hun,  114. 

Affidavits  to  obtain. —  To  entitle  the  defendant  to  demand  an  ad- 
journment he  must  make  an  oath  that  he  cannot  safely  proceed,  for 
want  of  some  material  testimony  or  witness.  Lynsky  v.  Prendegrast, 
2  E.  D.  Smith,  43.  No  witness  is  a  "  necessary  witness  "  unless  he  is 
a  material  witness,  but  a  witness  may  be  material  without  being  a 
necessary  witness,  and  other  witnesses,  also  material,  may  prove  the 
same  facts.  The  party  would  be  required  to  show  that  the  witness 
was  both  a  material  and  necessary  witness  ( Young  v.  Scott,  3  Hill, 
32)  ;  and  this  should  be  done  by  a  statement  of  facts,  and  not  as  a  mere 
opinion.  Murtha  v.  Walters,  2  Sandf.  517;  Board  of  Excise  of  Saratoga 
v.  Doherty,  16  How.  Pr.  46. 

A  party  applying  for  a  second  adjournment  must  bring  himself 
within  the  statute,  and  show  affirmatively  and  satisfactorily  that  he  has 
used  due  diligence  to  obtain  the  attendance  of  the  absent  witness.  An 
affidavit  alleging  that  the  witness  was  not  within  reach  of  the  process  of 
the  court  on  the  day  the  affidavit  was  made  is  not  sufficient.  If  the  affi- 
davit had  allegea  that  the  witness  had  been  out  of  the  reach  of  process 
since  the  last  adjournment,  it  would  be  sufficient.  Christman  v.  Paul, 
16  How.  17. 

An  affidavit  in  support  of  a  motion  for  postponement  of  a  trial  made 
by  the  sole  defendant  sued  as  indorser  on  a  promissory  note,  which  did 
not  show  that  she  was  a  necessary  and  material  witness  in  her  own 
behalf,  that  she  had  personal  knowledge  of  any  of  the  material  facts  or 
took  part  in  any  of  the  transactions  or  negotiations  connected  with  the 
subject-matter  of  the  action, — Held  insufficient.  National  Bank  of  Pen- 
sacola  v.  Anderson,  55  App.  Div.  570,  67  N.  Y.  Supp.  434. 

Consent;  objection. —  On  an  appeal,  though  the  record  shows  an  ad- 
journment for  more  than  eight  days,  consent  will  be  presumed  unless 
the  record  shows  an  objection,  and  jurisdiction  will  be  sustained.  Wood 
v,  Spofford,  29  Misc.  Rep.  357,  60  N.  Y.  Supp.  492. 


§194.      Adjournments;  Subpoenas;  Witnesses.  287 

Costs. —  Justice  may  impose  costs  on  adjournment,  but  failure  to  pay 
them  does  not  prevent  defendant  from  taking  part  in  the  trial.  Section 
77!)  of  the  Code  does  not  apply  to  this  court.  Farber  v.  Hannan,  30 
Misc.  Rep.  627. 

Discretionary. —  In  general,  a  justice  has  a  discretion  as  to  adjourn- 
ment, and  only  a  clear  abuse  of  that  discretion  will  be  error.  Onder- 
donck  v.  Ranlett,  3  Hill,  323;  Irroij  v.  Nathan,  4  E.  D.  Smith,  68;  Weed 
v.  Lee,  50  Barb.  354;  Rauson  v.  Grow,  4  E.  D.  Smith,  18. 

Refusal  to  allow  an  adjournment  in  the  midst  of  a  trial,  to  enable  a 
party  to  procure  the  attendance  of  an  expert  in  handwriting, — Held 
not  erroneous,  being  discretionary.  Silver  v.  Elias,  34  Misc.  Rep.  760, 
68  N.  Y.  Supp.  851. 

Exception. —  Denial  of  a  motion  to  postpone  a  trial,  made  at  the 
call  of  the  day  calendar,  is  not  the  subject  of  an  exception.  Wilkins  v. 
Beadiest  on  &  Woerz,  33  Misc.  Rep.  489,  67  N.  Y.  Supp.  683. 

Length. —  Unless  a  defendant  executes  an  undertaking  that  he  will 
pay  any  judgment  which  may  be  recovered  against  him  in  the  action,  the 
court  has  no  power  to  grant  him  an  adjournment  for  more  than  eight 
days.     Simon  v.  The  Sheridan  &  Shea  Co.,  21  Misc.  Rep.  489. 

Not  a  matter  of  right. —  A  defendant  upon  return  of  summons  is  not 
entitled  to  an  adjournment  as  a  matter  of  right  upon  his  request,  with- 
out showing  any  reason  therefor.  Raivson  v.  Grow,  4  E.  D.  Smith,  18; 
Ranney  v.  Gicynne,  3  E.  D.  Smith,  59.  Nor  is  he  entitled  to  an  adjourn- 
ment as  a  matter  of  right,  on  the  ground  that  his  counsel  is  engaged  in 
another  court.     Ranney  v.  Gicynne,  3  E.  D.  Smith,  59. 

Trial  from  day  to  day. —  The  justice  may  continue  the  trial  from 
day  to  day,  or  from  one  day  to  another  day  or  days,  until  the  same  is 
finished.     §  15. 

§  194.  Adjournment  longer  than  eight  days;  undertaking. — 
An  adjournment  may  be  had  either  at  the  joining  of  issue, 
or  at  any  subsequent  time  to  which  the  cause  may  stand  ad- 
journed on  application  of  either  party,  for  a  period  longer 
than  eight  days,  but  not  to  exceed  ninety  days  from  the  re- 
turn of  the  summons,  upon  executing  an  undertaking  in 
writing,  with  one  or  more  sufficient  sureties,  to  the  effect 
that  he  will  pay  to  the  plaintiff  or  defendant  the  damages, 
costs  and  extra  costs,  in  case  judgment  shall  be  rendered 
against  him  in  the  action,  upon  proof  by  the  oath  of  the  party 
or  otherwise,  to  the  satisfaction  of  the  court,  that  such  party 
cannot  be  ready  for  trial  before  the  time  to  which  he  desires 
an  adjournment,  for  the  want  of  material  evidence,  describ- 
ing it;  that  the  delay  has  not  been  made  necessary  by  any 


288   Adjournments;  Subpcenas;  Witnesses.  §§195,196. 

act  or  neglect  on  his  part  since  the  action  was  commenced, 
and  that  he  expects  to  procure  the  evidence  at  the  time 
stated  by  him.  All  bonds  taken  upon  the  adjournment  of 
any  cause  shall  be  good  and  valid  against  the  obligor  or 
obligors,  although  subsequent  adjournments  are  had  after 
the  execution  of  such  bond  or  obligation. 

Notes  to  section  194. 

This  section  is  the  same  as  section  1364  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  which  is  the  same  as  Laws  1857,  chap.  344, 
$  26. 

More  than  eight  days. —  A  party  is  not  entitled  to  a  longer  adjourn- 
ment than  eight  days  without  a  proper  affidavit,  and  giving  security 
for  his  appearance  and  for  payment  of  damages  and  costs.  It  seems 
that  when  such  affidavit  or  security  are  given,  the  statute  gives  the 
justice  no  discretion,  and  the  right  to  the  adjournment  is  absolute. 
Belshaw  v.  Colie,  1  E.  D.  Smith,  213.  See  also  Irroy  v.  Nathan,  4  E.  D. 
Smith,  68. 

Unless  a  defendant  executes  an  undertaking  that  he  will  pay  any 
judgment  which  may  be  recovered  against  him  in  the  action,  the  court 
has  no  power  to  grant  him  an  adjournment  for  more  than  eight  days. 
Simons  v.  The  Sheridan,  etc.,  21  Misc.  Rep.  489. 

More  than  ninety  days. —  Adjournments  of  a  cause  by  consent,  aggre- 
gating more  than  ninety  days,  do  not  divest  the  justice  of  jurisdiction. 
First  Nat.  Bank  of  Buchanan  v.  Smith,  24  Misc.  Rep.  709,  53  N".  Y. 
Supp.  795. 

§  195.  Conditions  may  be  imposed. —  The  court  may  impose 
upon  the  party  applying  for  an  adjournment  such  conditions 
as  to  it  may  seem  reasonable. 

Notes  to  section  195. 

This  section  is  the  same  as  section  1365  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  and  Laws  1857,  chap.  344,  §  28,  except  the 
word  "  court "  is  inserted  for  the  word  "  justice." 

Absent  witness. —  The  justice  may  require  the  party  to  disclose  what 
is  intended  to  be  proved  by  the  absent  witness,  and  if  refused,  the 
justice  is  fully  warranted  in  denying  the  motion.  Irroy  v.  Nathan, 
4  E.  D.  Smith,  68. 

§  196.  Attendance  of  witnesses. —  A  subpoena  requiring  a 
witness  to  appear  and  testify  on  the  trial  of  an  action,  on 


§  19(i      AdjouimstivIents  ;  Subjhestas  ;  Witnesses.  289 

the  demand  of  either  party,  shall  be  issued  out  of  this  court 
by  the  clerk  thereof,  in  the  district  in  which  the  action  is 
pending,  unless  otherwise  expressly  provided  in  this  act, 
and  may  be  served  at  any  place  within  the  city  of  New  York. 
The  subpoena  may  require  the  witness,  except  as  otherwise 
expressly  prescribed  by  law,  to  bring  with  him  any  book  or 
paper,  relating  to  the  merits  of  the  action. 

Motes  to  section  196. 

This  section  is  new,  and  is  taken  from  section  1370  of  the  Consolida- 
tion Act  (Laws  1882,  chap.  410),  and  section  2969  of  the  Code  of  Civil 
Procedure,  relating  to  justices'  courts. 

See  tit.  II,  "  Compelling  the  Attendance  and  Testimony  of  a  Witness," 
§§  852  to  869,  Code  Civ.  Proc.,  and  tit.  IV,  art.  2,  "Compelling  the 
Attendance  of  a  Witness,"  §§  2969  to  2979,  Code  Civ.  Proc.,  relating  to 
justices'  courts. 

This  section  196  and  the  following  four  sections,  197  to  and  in- 
cluding section  200,  are  taken  from  said  section  of  the  Code  applicable 
to  justices'  courts,  principally  sections  2969,  2970,  2971,  2972,  and  2979. 

Books;  inspection  of. —  The  action  was  to  recover  for  money  ab- 
stracted from  the  plaintiff's  firm  by  the  defendant,  their  bookkeeper,  and 
the  defense  was  that  the  money  was  taken  with  the  plaintiffs'  consent, 
under  an  agreement  that  the  defendant  was  to  have  one-fourth  of  the 
profits.  The  defendant  subpoenaed  one  of  the  plaintiffs  with  a  duces 
tecum  clause  to  produce  the  books  of  the  firm,  and  on  the  affidavit  of 
the  attorney,  that  he  believed  that  the  subpoena  duces  tecum  was  sewed 
for  the  purpose  of  annoyance,  and  that  it  called  for  the  production  of 
from  forty-five  to  fifty  books,  the  subpoena  duces  tecum  was  set  aside. 
Held,  that  the  court  erred  in  granting  the  application,  and  that,  if  the 
subpoena  was  too  broad,  the  court  should  have  required  the  plaintiffs 
to  allow  the  defendant  to  inspect  the  books,  or  to  furnish  copies  of  the 
material  portions  thereof.  Clyde  v.  Rogers,  24  Hun,  145;  appeal  dis- 
missed, s.  c,  87  N.  Y.  625. 

The  actual  production  of  books  and  papers  may  be  controlled  by  the 
court,  and  if  an  order  made  for  that  purpose  is  oppressive,  or  if  for 
any  reason  a  party  ought  to  be  relieved  from  any  or  all  of  its  pro- 
visions, the  application  should  be  made  to  the  court  wherein  the  order 
was  made.     In  re  Kelly,  11  Week.  Dig.  308. 

Corporation;  books  of;  how  produced. —  See  Code  Civ.  Proc,  §  S68, 
and  Wertheim  v.  Continental  Ry.  &  T.  Co.,  3  Civ.  Proc.  Rep.  71. 

Detention. —  A  witness  is  not  to  be  unreasonably  detained.  Const,  of 
1894,  art.  1,  §  5. 

Discharge  of  witness. —  A  witness  once  subpoenaed  and  called  to 
testify   upon  a   jury  trial    must   remain  until   the   trial   is  concluded, 

19 


iM.»0         Adjournments;   Subpoenas;  Witnesses.      §196. 

unless  discharged  by  consent  or  by  the  court.  Weil  v.  Thorn,  88  N.  Y. 
270. 

Excuse. —  Belief  that  evidence  of  no  benefit,  no  excuse.  Boncsteel  v. 
Lynde,  8  How.  220;  People  v.  Davis,  15  Wend.  602. 

Nonpayment  of  fees,  good  excuse  for  nonattendance.  Hurd  v.  Swan, 
4  Den.  75;  Bonestecl  v.  Lynde,  8  How.  220,  352. 

Poverty  is  no  excuse,  unless  amounting  to  inability  to  pay  expenses 
and  provide  for  family.    People  v.  Davis,  15  Wend.  002. 

Nothing  but  extreme  poverty,  or  inability  to  attend,  or  sickness  of 
himself  or  family,  will  excuse  nonattendance.  People  v.  Davis,  15 
Wend.  602. 

A  person  subpoenaed  to  attend  forthwith  as  a  witness  has  a  reason- 
able time  to  obey  by  means  of  ordinary  methods.  People  v.  Potter,  6 
N.  Y.  St.  Rep.  753.     See  also  "  Excuse  for  nonattendance,"  §   199. 

Nonresident  witness. — A  nonresident  witness  coming  here  to  attend 
court  is  privileged  against  either  arrest  or  service  of  a  summons;  a 
resident  witness  or  a  nonresident  party  attending  court  is  privileged 
against  arrest  only.  Jenkins  v.  Smith,  57  How.  171.  See  Frisbie  v. 
Young,  11  Hun,  474. 

A  witness  attended  at  request  of  counsel.  Held,  that  his  attendance 
was  voluntary,  and  he  was  not  privileged  from  arrest.  The  statute 
only  protects  a  witness  attending  under  compulsion  of  a  subpeena. 
Hardenbrook's  Case,  8  Abb.  Pr.  457. 

A  resident  of  another  county  while  attending  court  here  may  be 
served  with  process  where  the  court  has  jurisdiction,  independently  of 
service  in  New  York  city.     Sheldon  v.  Wakely,  3  Law  Bull.  94. 

The  exemption  from  service  of  process  of  a  witness  who  comes  from 
without  the  jurisdiction  to  attend  a  trial  is  a  personal  privilege  only, 
which  is  waived  if  not  taken  at  the  first  opportunity,  and  cannot  be 
claimed  for  the  first  time  on  appeal  from  a  judgment  entered  upon 
default.     Sebring  v.  Stryker,  10  Misc.  Rep.  289. 

Notice  to  produce. —  Where  the  plaintiff  gives  notice  to  the  defendant 
that  a  document  in  his  possession  will  be  required  at  the  trial,  if  neces- 
sary to  contradict  his  evidence,  he  may  give  secondary  evidence  of  the 
contents,  without  a  notice  to  produce  it.  Lawson  v.  Bachman,  81  N.  Y. 
616. 

In  Kerr  v.  McGuire,  28  N.  Y.  453,  it  was  held  notice  to  produce  may 
be  oral  in  presence  of  the  court,  as  each  party  is  at  least  presumed  to 
have  present  all  papers  bearing  on  the  case.  See  also  Hooker  v.  Eagle 
Bank,  30  N.  Y.  87. 

Every  inference  warranted  by  the  evidence  may  be  drawn  against  the 
party  who,  knowing  the  truth  and  having  the  evidence,  omits  to  pro- 
duce it.  Wylde  v.  Northern,  etc.,  53  N.  Y.  156.  See  pp.  163,  164;  s. 
c.,  14  Abb.  Pr.  N.  S.  213. 

Party  refusing  to  produce  a  contract  on  notice,  and  parol  proof  being 
given,  inferences  are  to  be  taken  most  strongly  against  him.      Cohen 


§197.      Adjournments;  Subpoenas;  Witnesses.  291 

v.  Continental  Life  Co.,  69  N.  Y.  300,  309;  Wylde  v.  Northern,  etc.,  53 
N.  Y.  163,  164. 

Officer  of  domestic  corporation. —  It  is  the  duty  of  a  person  upon 
whom  a  subpcena  duces  tecum  is  served  to  obey  it  either  personally  or 
by  a  subordinate  who  is  competent  to  identify  and  testify,  and  where 
he  does  so  in  person  his  attendance  is  not  necessarily  voluntary. 
Sebring  v.  Stryker,  10  Misc.  Rep.  289. 

Privileged  from  arrest. —  Code  Civ.  Proc,  §  860.  A  person  duly  and 
in  good  faith  subpoenaed  or  ordered  to  attend,  for  the  purpose  of  being 
examined,  in  a  case  where  his  attendance  may  lawfully  be  enforced  by 
attachment  or  by  commitment,  is  privileged  from  arrest  in  a  civil  action 
or  special  proceeding,  while  going  to,  remaining  at,  and  returning  from, 
the  place  where  he  is  required  to  attend. 

Public  officer. —  Personal  attendance  of,  not  required.  The  book  or 
paper  may  be  produced  by  subordinate  or  employee.  See  Code  Civ.  Proc, 
§  869. 

Records  not  to  be  removed  by  virtue  of  subpoena. —  Code  Civ.  Proc, 
§  866. 

Subpoena  duces  tecum;  production  of  books  of  account  and  how  a 
witness  may  be  relieved  therefrom.     See  Code  Civ.  Proc,  §  867. 

Not  necessary  when  witness  admits  possession  in  court  of  written 
instruments.  Boynton  v.  Boynton,  25  How.  490;  s.  c,  16  Abb.  87,  41 
N.  Y.  619. 

§  197.  How  subpoena  served. —  A  subpoena  may  be  served 
by  any  person  over  the  age  of  eighteen  years,  and  must  be 
served  by  delivering  a  copy  thereof  to  the  witness  person- 
ally, and  by  paying  or  tendering  to  him  his  lawful  fee  of 
twenty-five  cents  for  one  days  attendance  as  a  witness,  and 
mileage  as  provided  by  the  code  of  civil  procedure. 

Notes  to  section  197. 

This  section  is  new  and  is  taken  from  section  1370  of  the  Consolida- 
tion Act  (Laws  1882,  chap.  410),  and  section  2970  of  the  Code  of  Civil 
Procedure,  relating  to  justices'  courts. 

This  section  specifies  the  amount  of  witness  fees,  but  does  not 
specify  the  amount  of  mileage,  except  to  say  "  as  provided  by  the  Code 
of  Civil  Procedure." 

The  Code  of  Civil  Procedure  as  to  "  witness  fees  generally  "  is  section 
3318.  Section  352  of  this  act  again  specifies  the  amount  of  witness 
fees,  and  specifies  the  amount  of  mileage. 

Fees. —  A  party  is  not  entitled  to  witness  fees  for  testifying  in  his 
own  behalf.     Steers  v.  Miller,  30  How.  7,  affg.  28  How.  266. 


292         Adjournments ;   Subpoenas;   Witnesses.      £  198. 

One  who  attends  in  two  causes  may  have  fees  in  both.  Hicks  v. 
tin  nmiii,  10  Abb.  304;    Fence  v.  Spier,   18  How.  108. 

A  witness  served  with  a  subpoena  duces  tecum  is  entitled  only  to  the 
ordinary  witness  fees.    In  re  Corwin,  6  Abb.  X.  C.  437. 

Waiver  of  fees  must  be  express  in  order  to  subject  the  witness  to 
penalty  for  nonattendance.  An  implied  waiver  is  not  sufficient.  Mus- 
cott  v.  Runge,  27  How.  Pr.  85. 

A  witness  is  not  bound  to  refund  fees  paid  him  upon  the  service  of 
subpoena,  because  the  cause  is  settled  or  put  off.  and  lie  is  notified  that 
he  need  not  attend.  Ford  v.  Monroe,  0  How.  Pr.  20;  s.  c.  10  X.  Y. 
Leg.  Obs.   155. 

Habeas  corpus  to  testify  (see  Code  Civ.  Proc,  §  2010)  may  also  be 
issued  by  a  justice  of  the  Supreme  Court,  upon  the  application  of  a 
party  to  an  action  pending  before  a  justice  of  the  peace  or  in  a  justice's 
court  of  a  city,  or  a  District  Court  of  the  city  of  Xew  York. 

Mileage. —  If  a  witness  resides  more  than  three  miles  from  the  place 
of  attendance,  he  is  entitled  to  eight  cents  for  each  mile,  going  to  the 
place  of  attendance.     §  352  of  this  act  (Code  Civ.  Proc.,  §  3318). 

§  198. 'Warrant  of  attachment  against  defaulting  witness . 

AVhere  it  is  made  to  appear,  to  the  satisfaction  of  the  court, 
by  affidavit  or  other-proof,  that  a  person  duly  subpoenaed  to 
attend  before  it  in  an  action,  has  refused  or  neglected  to 
attend  as  a  witness  in  obedience  to  the  subpoena,  and  no 
just  cause  for  the  neglect  or  refusal  is  shown  to  exist,  and 
the  person  is  not  privileged  from  attendance  under  any  stat- 
ute of  the  state,  and  the  party,  in  whose  behalf  the  witness 
was  subpoenaed,  or  his  attorney,  makes  oath  that  the  testi- 
mony of  the  witness  is  material,  the  court  must  issue  a  war- 
rant of  attachment,  directed  generally  to  any  marshal,  for 
the  purpose  of  compelling  the  attendance  of  the  witness. 

Notes  to  section  198. 

This  section  is  the  same  as  section  2971  of  the  Code  of  Civil  Pro- 
cedure, relating  to  justices'  courts,  except  that  the  word  "  justice"  has 
been  changed  to  the  word  "court."  and  "constable  of  the  county'"  to 
"  city  marshal." 

Excuse  for  nonattendance  of  witness;  privilege  of  nonresident  wit- 
ness from  service  of  summons  and  arrest  and  privilege  of  witness  from 
arrest. —  See  notes  to  §  196. 

See  notes  to  §  200  as  to  "  Compelling  the  attendance  of  witness  "  and 
"  Fine  and  punishment." 


§§199,200.  Adjournments  ;  Subpcenas;  Witnesses.    293 

§  199.  How  executed;  fees  thereupon. —  Such  a  warrant  of 
attachment  must  be  executed  in  the  same  manner  as  an 
order  of  arrest.  The  fees  of  the  marshal  for  serving  it  must 
be  paid  by  the  person  against  whom  it  is  issued,  unless  he 
shows  a  reasonable  excuse  to  the  satisfaction  of  the  court, 
for  his  omission  to  attend,  in  which  case  the  party  pro- 
curing the  warrant  must  pay  them,  and  if  he  recovers  costs, 
the  amount  thereof  must  be  allowed  to  him  as  part  of  his 
costs. 

Notes  to  section  199. 

This  section  is  taken  from  section  2972  of  the  Code  of  Civil  Proce- 
dure, relating  to  justices'  courts. 

Sections  55  and  59,  relating  to  proceedings  on  arrest,  prescribe  how 
the  warrant  must  be  executed. 

§  200.  Defaulting  witness  liable  for  damages  and  penalty  of 
fifty  dollars. —  A  person  subpoenaed,  as  prescribed  in  this 
act,  who  neglects  or  refuses  to  obey  the  subpoena,  or  to 
testify,  is  also  liable  to  the  party,  in  whose  behalf  he  was 
subpoenaed,  for  all  damages  which  the  party  sustains  by 
reason  of  his  neglect  or  refusal,  and  fifty  dollars  in  addi- 
tion thereto,  and  is  subject  to  any  fine  or  punishment  which 
may  be  imposed  in  accordance  with  the  provision  of  section 
eight  of  this  act. 

Notes  to  section  200. 

This  section  is  taken  from  section  2979  of  the  Code  of  Civil  Pro- 
cedure, relating  to  justices'  courts.  Section  8,  therein  referred  to,  re- 
lates to  "  Contempts  punishable  civilly  "  containing  seven  subdivisions 
as  to  the  cases  in  which  the  court  has  power  to  punish  by  fine  and 
imprisonment,  or  either,  without  specifying  what  the  fine  or  imprison- 
ment may  be,  as  is  specified  in  section  5  with  regard  to  criminal  con- 
tempts of  court  enumerated  in  section  4.  The  reading  of  the  present 
section  200  is  "  and  is  subject  to  any  fine  or  punishment  which  may  be 
imposed  in  accordance  with  the  provisions  of  section  8  of  this  act." 
We  have  endeavored  to  point  out  that  there  are  no  provisions  in  section 
8  as  to  the  amount  of  fine,  or  limit  of  the  imprisonment  as  expressly 
specified  in  sections  4  and  5  with  regard  to  "  Criminal  contempts." 

The  "  proceedings  to  punish  a  contempt  of  court  other  than  a  crim- 
inal contempt  "  are  to  be  found  in  title  III,  sections  2266  to  2292  of 
the  Code  of  Civil  Procedure.  Section  2284  relates  to  the  "Amount  of 
fine,"   section   2285   to   the   "Length   of  imprisonment"   etc.,   but  these 


294  Adjournments;  Subikenas;  Witnesses.      §200. 

provisions,  by  section  2206  of  said  Code,  apply  to  a  court  of  record,  and 
there  is  no  provision  in  the  present  act  making  them  applicable  to  this 
court,  except  perhaps  section  20,  which  is  questionable. 

It  is  true  that  these  provisions  of  the  Code  (§§  2266  to  2292)  are 
not  in  conflict  with  the  provisions  of  this  act,  and  it  may  be  therefore 
that  this  court  has  the  power  to  punish  for  civil  contempts  under  those 
sections  of  the  Code  the  same  as  in  a  court  of  record,  by  virtue  of 
section  20,  but  nowhere  else  in  this  act  are  those  sections  made  to 
apply  either  directly  or  by  implication.  Subdivision  7  of  section  8  is 
quite  sweeping,  but  it  only  relates  to  any  other  case  in  addition  to  the 
other  subdivisions  in  that  section,  and  not  to  any  amount  of  fine  or 
imprisonment  to  be  imposed. 

Compelling  the  attendance  and  testimony  of  a  witness. —  See  §§  852 
to  869,  Code  Civ.  Proc,  and  "  Compelling  the  attendance  of  a  witness" 
§§  2969  to  2979  of  said  Code. 

Nonattendance  of  witness;  remedies. —  The  remedies  available  to  a 
party  injured  by  the  nonattendance  of  a  witness  discussed.  Courtney 
v.  Baker,  3  Den.  27. 

To  entitle  plaintiff  to  recover  he  must  prove  that  an  action  was  pend- 
ing in  which  the  defendant  might  be  a  witness;  that  a  subpoena  was 
issued  and  served;  that  a  payment  of  fees  was  made;  that  he  was  a 
material  witness;  that  he  did  not  appear;  and  damages.  Muscott  v. 
Range,  27  How.  85.  See  Courtney  v.  Baker,  3  Den.  27;  Carrington  v. 
Hutson,  28  Hun,  371.     See  also  "Excuse  for  nonattendance,"  §   199. 

Punishment  of  witness. —  Statute  must  be  strictly  followed  before 
warrant  can  issue.     Rutherford  v.  Holmes,  66  N.  Y.  368. 

Refusal  to  produce  papers. —  Where  plaintiff  had  been  subpoenaed  by 
the  defendant  to  produce  the  bond  in  suit,  the  complaint  was  stricken 
out  for  a  continuous  refusal,  by  his  counsel,  to  produce  the  bond,  which 
he  had  in  his  pocket.     Shelp  v.  Morrison,  13  Hun,  110. 

No  excuse  that  witness  has  lost  or  mislaid  papers  he  was  required  to 
produce,  where  there  is  a  deliberate  design  to  elude  the  process  of  the 
court.     Bonesteel  v.  Lynde,  8  How.  226,  352. 

Note. —  There  are  no  sections  from  200  to  205. 


§  205.  Commission  ;  Depositions.  295 

ABJTTCLE  II. 

Commission  to    Take  Testimony;  Depositions. 

Section  205.  Commission  to  take  testimony,  et  cetera. 

206.  Commission  on  consent;  deposition  upon  oral  questions. 

207.  When  and  how  commission  granted. 

208.  Adjournment  where  commission  granted. 

209.  How  executed  and  returned. 

210.  Certificate  of  execution. 

211.  Certificate,  a  sufficient  return. 

212.  When  deposition  may  be  suppressed. 

213.  Deposition,  et  cetera,  evidence. 

214.  Power  of  commissioners. 

215.  Receipt  of  clerk;   return  of  commission  by. 

216.  Deposition  to  take  testimony  conditionally. 

217.  Affidavit  on  application;  requirements  of. 

218.  Deposition  by  consent. 

219.  Order  for  examination. 

220.  Punishment  for  disobeying  order,  witness  fees. 

221.  Service  of  order. 

222.  Adjournment  of  examination. 

223.  Party  confined  in  prison. 

224.  Rules  for  examination;   manner  of  taking  and  returning 

deposition ;   refusal  of  person  examined  to  answer. 

225.  Deposition  may  be  read  in  evidence;  when. 

226.  Effect  of  deposition. 

§205.  Commission  to  take  testimony,  et  cetera. —  Where 
the  defendant  has  neglected  to  appear  upon  the  return  of  a 
summons,  or  has  failed  to  answer  the  complaint,  or  where 
an  issue  of  fact  has  been  joined  in  an  action;  and  it  appears, 
by  affidavit,  upon  the  application  of  either  party,  that  a 
witness,  not  within  the  city  of  ISTew  York,  is  material  in  the 
prosecution  or  defense  of  the  action,  the  court  may  award 
a  commission  to  one  or  more  competent  persons,  authorizing 
them,  or  any  of  them  to  examine  the  witness  under  oath, 
upon  interrogatories  to  be  settled  by  the  court,  or  by  writ- 
ten agreement  of  the  parties,  and  indorsed  upon  or  annexed 
to  the  commission;  to  take  and  certify  the  deposition  of  the 
witness,  and  to  return  the  same  by  mail,  addressed  to  the 
clerk  of  the  court. 


296  Commission;  Depositions.        §§  206, 207. 

Notes  to  section  205. 

This  section  is  taken  from  section  -I'.KSO  of  the  Code  of  Civil  Pro- 
cedure, relating  to  justices'  courts,  which  was  made  applicable  to  this 
court  by  section  1308,  Consolidation  Act   (Laws  1882,  chap.  410). 

Authority  to  be  strictly  followed. —  The  power  is  statutory  and  to 
be  strictly  pursued.  Baron  v.  People,  1  N.  Y.  380 ;  I'cndell  v.  Com.,  20 
N.  Y.  134;  Fleming  v.  Hollenback,  7  Barb.  271;  Creamer  v.  Jackson,  4 
Abb.  Pr.  413;  Smith  v.  Randall,  3  Hill,  495;  Collins  v.  Schaffer,  29  N. 
Y.  Supp.  574. 

Clerk  to  open  and  file  commission  on  its  return. —  See  §  215. 

Regarded  as  process  and  amendable. —  The  writ  of  commission  is  to 
be  regarded  as  process,  and  is  amendable  wherever  process  is  amendable. 
An  amendment  will  be  allowed  whenever  it  is  in  furtherance  of  justice, 
if  the  court  has  jurisdiction  of  the  action  in  which  the  amendment  is 
sought  to  be  made.  The  general  subject  of  amending  process  at  com- 
mon law  and  under  the  statute  discussed1.  Leetch  v.  Atlantic  Mutual 
Ins.  Co.,  4  Daly,  518. 

Seal. —  By  section  18,  this  court  has  a  seal;  the  courts  of  justices 
of  the  peace  have  no  seal.  There  seems  to  be  no  express  provision  of 
law  that  the  clerk  or  justice  of  the  court  should  attach  the  seal  of  the 
court  to  the  commission.  It  certainly  is  proper  that  courts  having  a 
seal  should  attach  it  to  such  an  important  paper  as  a  commission  go- 
ing to  a  foreign  State;  courtesy,  dignity,  and  authenticity  require  it, 
and  it  is  held  that  when  courts  have  a  seal,  and  it  is  required  to  be 
placed  upon  a  commission,  the  omission  of  the  seal  is  a  fatal  objection 
to  the  legality  of  the  commission.  See  Ford  v.  Williams,  24  N.  Y.  349 ; 
Tracy  v.  Buy  dam,  30  Barb.  120;  Whitney  v.  Wyncoop,  4  Abb.  Pr.  370. 

§  206.  Commission  on  consent;  deposition  upon  oral  ques- 
tions.—  If  both  parties  expressly  consent,  a  commission  may 
issue  without  written  interrogatories,  and  the  deposition 
may  be  taken  upon  oral  questions. 

Note  to  section  206. 

This  section  is  taken  from  section  2981  of  the  Code  of  Civil  Procedure, 
relating  to  justices'  courts,  which  was  made  applicable  to  this  court 
by  section  1368  of  the  Consolidation  Act   (Laws  1882,  chap.  410). 

§  207.  When  and  how  commission  granted. —  The  commis- 
sion may  be  granted  by  the  court  without  notice,  upon  the 
application  of  the  plaintiff,  made  at  the  return  of  the  sum- 
mons, or  upon  the  application  of  either  party,  made  at  the 
time  of  the  joinder  of  issue.     It  may  also  be  granted  at  any 


§208.  Commission  ;  Depositions.  297 

time  after  the  joinder  of  issue,  upon  the  application  of  either 
party,  accompanied  with  proof,  by  affidavit,  that  three  days 
written  notice  of  the  application  has  been  served  upon  the 
adverse  party,  either  personally  or  by  service  upon  the  at- 
torney, who  appeared  for  him  before  the  court. 

Notes  to  section  207. 

This  section  is  taken  from  section  2982  of  the  Code  of  Civil  Procedure, 
relating  to  justices'  courts,  which  was  made  applicable  to  this  court 
by  section  1368  of  the  Consolidation  Act   (Laws  1882,  chap.  410). 

Should  be  applied  for  promptly. —  Its  granting  is  almost  a  matter 
of  course,  but  it  should  be  applied  for  without  unreasonable  delay,  after 
issue  joined.  Rathbun  v.  Ingersoll,  34  N.  Y.  Super.  211;  Brokaw  v. 
Bridgman,  6  How.   114. 

Affidavit  may  be  made  by  the  attorney,  or  any  third  person  cognizant 
of  the  facts.  Beall  v.  Day,  7  Wend.  513;  Brackett  v.  Dudley,  1  Cow. 
210. 

Discretionary. —  The  court,  upon  reasonable  grounds  being  shown 
therefor,  may  order  the  party  to  disclose  by  affidavit  what  he  expects 
to  prove,  and  may  then  grant  the  order,  either  absolutely  or  condi- 
tionally, unless  the  adverse  party  will  admit  the  facts  sought  to  be 
proved;  and  he  must  admit  the  facts,  not  that  the  witness  will  testify 
to  such  facts.     Beall  v.  Day,  7  Wend.  514. 

The  power  to  issue  a  commission  is  discretionary,  and  the  justice 
may  properly  refuse  to  issue  one  when  no  possible  benefit  could  accrue 
to  the  party  applying  for  it;  as  for  example,  where  the  party  apply- 
ing declines  to  ask  for  an  adjournment  until  the  examination  can  be 
had,  and  a  return  thereto  made.  Dryer  v.  Sexsmith,  40  Hun,  242,  10 
Civ.  Proc.  Rep.  29,  23  Week.  Dig.  498. 

Interpleader. —  Where  one  of  the  defendants  denied  plaintiff's  right 
to  interplead,  held,  that  a  commission  to  take  testimony  out  of  the  State 
might  be  issued,  but  the  testimony  must  be  confined  to  the  questions 
arising  on  the  right  to  interplead,  and  not  upon  the  merits  of  the  claim. 
Kemp  v.  Dickinson,  22  Hun,  593. 

Security  for  costs  as  a  condition. —  The  court  may  require  security 
for  costs  in  this  court,  under  section  889  of  the  Code,  as  a  condition 
of  allowing  plaintiff  a  commission  to  take  testimony  abroad;  and  such 
a  condition  is  reasonable  where  plaintiffs  have  delayed  their  application 
without  apparent  cause,  and  their  recovery  is  doubtful.  Haines  v.  Judd, 
16  Daly,  110. 

§  208.  Adjournment  where  commission  granted Where  a 

commission  is  granted,  the  party  upon  whose  application  it 
is  issued,  is  entitled  to  such  an  adjournment  of  the  trial  as 


298  Commission  ;  Depositions.  §  209. 

may  be  necessary  to  procure  the  commission  to  be  executed 
and  returned.  Subject,  however,  to  the  provisions  of  sec- 
tions one  hundred  and  ninety-three  and  one  hundred  and 
ninety-four  of  this  act. 

Notes  to  section  308. 

This  section  is  taken  from  section  2983  of  the  Code  of  Civil  Proce- 
dure, relating  to  justices'  courts,  which  was  made  applicable  to  this 
court  by  section  1368,  Consolidation  Act    (Laws  1882,  chap.  410). 

Sections  193  and  194  relate  to  "Adjournments." 

Adjournment  to  plaintiff. —  Where  the  application  for  commission 
is  made  by  the  defendant,  or  if  no  commission  is  issued,  the  justice  has 
no  right  to  grant  plaintiff  an  adjournment;  in  so  doing  the  adjournment 
is  irregular,  and  the  case  will  be  out  of  court  as  between  the  parties. 
Bedford  v.  Snow,  12  N.  Y.  St.  Rep.  323,  46  Hun,  370. 

No  adjournment  can  be  had  on  the  application  of  the  plaintiff,  except 
at  the  first  return  of  the  summons,  or  when  a  commission  is  issued  upon 
his  application.  Bedford  v.  Snow,  46  Hun,  370;  Crisp  v.  Rice,  83  Hun, 
466. 

Witness  in  the  city. —  Where  during  the  trial,  after  the  completion 
of  the  reading  of  a  deposition,  it  appeared  the  witness  was  then  in  the 
city,  and  there  was  no  evidence  the  party  who  read  his  deposition  knew 
it,  he  was  not  obliged  to  consent  to  an  adjournment  so  that  the  witness 
might  be  subpoenaed.       Denny  v.  Horton,  3  Civ.  Proc.  Rep.  255. 

§  209.  How  executed  and  returned. —  The  person,  to  whom 
a  commission  is  directed,  or  before  whom  a  deposition  is 
taken,  unless  otherwise  expressly  directed  in  the  commission, 
or  in  the  order  for  taking  the  depositions,  must  execute  the 
commission,  or  the  order  as  follows : 

1.  He  must  publicly  administer,  to  each  witness  examined, 
an  oath  or  affirmation  to  testify  the  truth,  the  whole  truth, 
and  nothing-  but  the  truth,  as  to  the  matters  respecting 
which  the  witness  is  examined. 

2.  He  must  reduce  the  examination  of  each  witness  to 
writing,  or  cause  it  to  be  reduced  to  writing,  by  a  disinter- 
ested person.  After  it  has  been  carefully  read,  to  or  by  the 
witness,  it  must  be  subscribed  by  the  witness. 

3.  If  an  exhibit  is  produced  and  proved,  the  exhibit,  or, 
if  the  witness,  or  other  person  having  it  in  his  custody,  does 
not  surrender  it,  a  copy  thereof,  must  be  annexed  to  the 


§  209.  Commission  ;  Depositions.  299 

deposition  to  which  it  relates,  subscribed  by  the  witness 
proving  it,  and  numbered  or  otherwise  identified,  in  writing 
thereupon,  by  the  commissioner  or  other  person  taking  the 
deposition,  who  must  subscribe  his  name  thereto. 

4.  The  commissioner,  or  person  taking  the  deposition, 
must  subscribe  his  name  to  each  half  sheet  of  the  deposition, 
and  he  must  annex  all  the  depositions  and  exhibits  to  the 
commission,  or  to  a  certified  copy  of  the  order  for  taking 
the  deposition,  with  the  certificate  specified  in  the  next  sec- 
tion; and  he  must  close  them  up  under  his  seal,  and  address 
the  packet  to  the  clerk  of  the  court,  at  his  official  residence. 

5.  If  there  is  a  direction,  on  the  commission,  or  in  the 
order  to  return  the  same  through  the  post  office,  he  must 
immediately  deposit  the  packet,  so  addressed,  in  the  post 
office,  and  pay  the  postage  thereon. 

6.  If  there  is  a  direction  on  the  commission,  or  in  the 
order,  to  return  the  same  by  an  agent  of  the  party,  at  whose 
instance  it  was  issued  or  granted,  the  packet  so  addressed 
must  be  delivered  to  the  agent. 

7.  Where  a  commission  is  directed  to  two  or  more  persons, 
one  or  more  of  them  may  execute  it,  as  prescribed  in  this  and 
the  next  section. 

A  copy  of  this  and  of  the  next  section  must  be  annexed 
to  each  commission,  or  order  to  take  depositions,  authorized 
by  this  article. 

Notes  to  section  209. 

This  section  is  the  same  as  section  901  of  the  Code  of  Civil  Procedure. 
Section  1368  of  the  Consolidation  Act  (Lpavs  1882,  chap.  410)  made  sec- 
tion 2984,  Code  Civil  Procedure,  relating  to  justices'  courts,  applicable 
to  this  court,  and  the  latter  section  made  section  901,  Code  of  Civil  Pro- 
cedure, applicable. 

Counsel  at  execution. —  On  the  execution  of  a  commission,  the  parties 
have  a  right  to  appear  by  counsel.  Union  Bank  of  Sandusky  v.  Torrey, 
2  Abb.  Pr.  269. 

Delay  in  return. —  Where  sufficient  time  bas  elapsed,  prima  facie,  to 
have  the  return,  the  stay  will  be  vacated  on  motion,  and  the  party  who 
issued  the  commission  must  establish  further  grounds  for  a  stay.  Voss 
v.  Fielden,  2  Sandf.  690. 

Papers  annexed. —  If  any  writings  are  to  be  proved,  they,  or  copies 
thereof,  should  be  annexed  for  the  purpose  of  reference,  description,  and 
identification,  producing  the   original   on  the  examination  of  the   wit- 


oUO  Commission;    Depositions.        §§210,211. 

nesses.  Commercial  Hunk  of  Penn.  v.  Union  Hunk  uj  New  lark,  11 
N.  Y.  203. 

The  court  has  no  power  to  order  the  original  instrument  to  be  annexed. 
Butler  v.  Lee,  32  Barb.  75;  s.  c,  19  How.  384. 

§  210.  Certificate  of  execution. — The  commissioner  or  other 
person,  before  whom  one  or  more  depositions  are  taken, 
must  subscribe,  and  annex  to  each  deposition,  a  certificate, 
substantially  in  the  following  form,  the  blanks  being  prop- 
erly filled  up: 

State  (or  territory)  of ^ 

County  (or  parish)  of i 

I, do  certify  that the  wit- 
ness, personally  appeared  before  me  on  the day  of 

,  at o'clock  in  the noon,  at  the 

,  in  the  state  (or  territory)  of ,  and  after 

being  sworn  (or  affirmed,  as  the  case  may  be),  to  testify 
the  truth,  the  whole  truth,  and  nothing  but  the  truth,  did 
depose  to  the  matters  contained  in  the  foregoing  deposition, 
and  did,  in  my  presence,  subscribe  the  same,  and  indorse  the 
exhibits  annexed  thereto.  And  I  further  certify  that  I 
have  subscribed  my  name  to  each  half  sheet  thereof,  and  to 
each  exhibit. 

And  I  further  certify  that appeared  in  be- 
half of  the and  that appeared 

in  behalf  of  the 

Note  to  section  210. 

This  section  is  the  same  as  section  902  of  the  Code  of  Civil  Procedure. 
Section  1368  of  the  Consolidation  Act  (Laws  1882,  chap.  410)  made  sec- 
tion 2986,  Code  of  Civil  Procedure,  relating  to  justices'  courts,  applicable 
to  this  court,  and  the  latter  section  made  section  902,  Code  of  Civil 
Procedure,  applicable. 

§211.  Certificate,  a  sufficient  return. —  The  certificate 
specified  in  the  last  section,  is  a  sufficient  return  to  a  com- 
mission. 

Note  to  section  211. 

This  section  is  the  same  as  section  903  of  the  Code  of  Civil  Procedure. 
Section   1368  of  the  Consolidation  Act    (Laws   1882,  chap.   410)    made 


§212.  Commission;  Depositions.  301 

section  2980,  Code  of  Civil  Procedure,  relating  to  justices'  courts,  ap- 
plicable to  this  court,  and  the  latter  section  made  section  903,  Code 
of  Civil   Procedure,   applicable. 

§  212.  When  deposition  may  be  suppressed. —  Where  it  ap- 
pears, by  affidavit  that  a  deposition  lias  been  improperly  or 
irregularly  Taken  or  returned;  or  that  the  personal  attend- 
ance of  the  witness,  upon  the  trial,  could  have  been  procured, 
with  due  diligence,  by  a  subpoena,  or  that  the  attorney  for 
either  party  has  practiced  any  fraud,  or  unfair  or  overreach- 
ing conduct,  to  the  prejudice  of  the  adverse  party,  in  the 
course  of  the  proceedings;  an  order  for  the  suppression  of 
the  deposition,  may  be  made  by  the  court,  upon  the  appli- 
cation of  the  party  aggrieved,  upon  notice  to  the  adverse 
party. 

Notes    to    section    212. 

This  section  is  entirely  new  to  this  court,  and  is  the  same  as  section 
910  of  the  Code  of  Civil  Procedure.  Heretofore  there  was  no  power 
in  this  court  to  suppress  a  deposition.  Section  910  was  not  included  in 
section  1368  of  the  Consolidation  Act  (Laws  1882,  chap.  410),  or  in- 
cluded in  any  of  the  sections  of  the  Code  of  Civil  Procedure  therein 
specified. 

In  Denny  v.  Horton,  11  Daly,  359,  this  was  recognized,  the  court  how- 
ever saying  the  District  Courts  had  the  incidental  power,  by  implication, 
given  by  the  right  to  issue  the  commission. 

Amending  return. —  If  the  commission  be  defectively  executed  the 
court  has  power  to  order  it  to  be  returned  to  have  the  defect  amended, 
and  it  is  not  necessary  to  issue  a  new  commission.     Sheldon  v.  Wood,  2 

Bosw.  2ti7. 

Directions  from  plaintiff  to  witness. —  Where  it  appears  that  the 
testimony  taken  was  given  under  written  memoranda,  in  directions  sent 
to  him  in  behalf  of  a  plaintiff  before  his  deposition  was  taken,  the 
judge  has  the  power  to  suppress  it.  Xordlinger  v.  Anderson,  24  N.  Y. 
St.  Rep.  240. 

Mistake  in  name  of  the  witness. —  In  the  affidavit  the  name  being 
George  C.  Fox  and  in  the  commission  Frank  C.  Fox  is  an  irregularity. 
See  Denny  v.  Horton,  11  Daly,  35S. 

Letters  for  identification. —  Upon  the  taking  of  a  deposition,  out  of 
the  State,  letters  which  are  merely  identified  before  the  commissioner 
are  not  to  be  considered  as  having  been  "produced  and  proved"  within 
the  meaning  of  section  901  of  the  Code  of  Civil  Procedure,  or  of  the 
Revised  Statutes,  as  exhibits,  and  need  not  be  annexed  to  the  commis- 
sion.   Such  identification  is  not  enough  to  admit  them  at  the  trial,  with- 


302  Commission;  Depositions.  §213. 

out  evidence  of  genuineness  by  witnesses,  who  can  be  cross-examined. 
That  such  letters  have  not  been  annexed  to  the  deposition  is  there- 
fore not  a  sufficient  ground  for  .suppressing  the  commission.  Kelly  v. 
Weber,  9  Abb.  X.  (  .  62. 

There  are  notes  and  authorities  at  the  end  of  this  case. 

Objection  to  evidence,  taken  under  a  commission,  that  the  commis- 
sion was  not  executed  by  the  person  intended,  should  be  raised  by  motion 
to  suppress  where  the  party  has  an  opportunity  so  to  do;  if  not  so 
raised  it  will  be  deemed  to  have  been  waived;  it  cannot  be  raised,  upon 
the  trial,  where  the  party  had  knowledge  of  the  fact  a  sufficient  time 
before  the  trial  to  enable  him  to  make  the  motion.  Newton  v.  Porter 
et  at,  69  N.  Y.  133. 

Order  suppressing  the  deposition  must  be  obtained  or  it  can  be  read 
in  evidence.  Hedges  v.  Williams,  33  Hun,  54G ;  Denny  v.  Horton,  1 1 
Daly,  358. 

Second  commission. —  The  court  will  sometimes  allow  a  second  com- 
mission to  issue.  Fisher  v.  Dale,  17  Johns.  342;  Washington  Bank  v. 
Palmer,  2  Sandf.  686,  690. 

§  213.  Deposition,  et  cetera,  evidence. — A  deposition,  taken 
and  returned  as  prescribed  in  this  article,  may,  unless  it  is 
suppressed  as  prescribed  in  the  last  section,  be  read  in  evi- 
dence by  either  party.  '  It  has  the  same  effect,  and  no  other, 
as  the  oral  testimony  of  the  witness  would  have;  and  an  ob- 
jection to  the  competency  or  credibility  of  the  witness,  or  to 
the  relevancy,  or  substantial  competency,  of  a  question  put 
to  him,  or  if  an  answer  given  by  him,  may  be  made,  as  if 
the  witness  was  then  personally  examined,  and  without  be- 
ing noted  upon  the  deposition. 

Notes  to  section  213. 

This  section  is  the  same  as  section  911  of  the  Code  of  Civil  Procedure. 
Section  1368  of  the  Consolidation  Act  (Laws  1882,  chap.  410)  made 
section  2986,  Code  of  Civil  Procedure,  relating  to  justices'  courts,  ap- 
plicable to  this  court,  and  the  latter  section  made  section  911,  Code  of 
Civil  Procedure,  applicable. 

Competency  of  witness  is  determined  by  the  law  in  force  at  the 
trial.     Fielden  v.  Lahens,  6  Abb.  Pr.  N.  S.  341. 

General  interrogatory. —  Neither  the  general  interrogatory  nor  any 
pertinent  answer  to  it  is  immaterial.  McCarthy  v.  Edwards,  24  How. 
236;  Percival  v.  Hickey,  18  Johns.  257. 

Impeaching  witness. —  Rule  that  witness  cannot  be  impeached  by 
proof  of  other  statements  out  of  court  applies  to  witness  on  commission. 
Van  Ness  v.  Bush,  14  Abb.  33;  s.  c,  22  How.  481. 


§214.  •     Commission;  Depositions.  303 

Irresponsive  answer. —  An  answer  not  responsive  to  an  interrogatory 
may  be  objected  to  by  either  party  on  the  trial,  and  will  thereupon  be 
excluded.     Lansing  v.  Coley,   13  Abb.  Pr.  272. 

But  testimony  otherwise  competent  will  not  be  rejected  at  the  trial 
because  not  responsive.    Fassin  v.  Hubbard,  55  N.  Y.  465. 

Knowledge  of  witness. —  Where  a  witness  testifies  positively  to  facts 
which  may  be  within  his  personal  knowledge,  and  the  opposite  party 
makes  no  inquiries  to  ascertain  whether  they  were  so  or  not,  the  court 
must  assume  that  the  witness  speaks  from  such  knowledge.  This 
rule  applies  as  well  where  the  testimony  of  the  witness  is  taken  upon 
commission  as  to  an  oral  examination.  Fassin  et  al.  v.  Hubbard,  55 
N.  Y.  466. 

Leading  questions. —  The  objection  to  an  interrogatory  annexed  to  x 
commission,  on  the  ground  of  its  being  leading,  may  be  made  when  the 
answer  of  the  witness  is  proposed  to  be  read  in  evidence.  Fleming  v. 
Hollenback,  7  Barb.  271. 

Materiality. —  The  issuance  of  the  commission  determines  the  ma- 
teriality of  the  witness  to  be  subpoenaed.  Wintenbrock  v.  Mabius,  57 
Hun,  146;  s.  c,  10  N.  Y.  Supp.  733. 

Objections  to  testimony. —  Incompetent  matter  contained  in  an  an- 
swer to  an  interrogatory  annexed  to  a  commission  executed  without 
the  State  may  be  objected  to  for  the  first  time  on  the  trial,  although 
the  objection  was  not  taken  upon  the  settlement  of  the  interrogatories,  or 
by  motion  to  suppress  the  commission.  Wanamaker  v.  Megraw,  168 
N".  Y.  125,  61  N.  E.  112,  revg.  48  App.  Div.  54. 

Objections  must  be  specific. —  Objections  taken  at  the  trial  must  be 
specific.     Valton  v.  Nat.  F.  L.  Assn.,  20  N.  Y.  32. 

Order  for  suppression  of  depositions;  when  not  obtained. —  Section 
910  of  the  Code  has  not  changed  the  former  practice  when  no  order  for 
the  suppression  of  the  depositions  has  been  obtained,  and  that  allowed 
them  to  be  used  as  evidence,  even  if  the  personal  attendance  of  the 
witness  could  be  secured.     Hedges  v.  Williams,  33  Hun,  546. 

§  214.  Power  of  commissioners. —  Where  the  commission  is 
executed  within  the  state,  the  commissioner,  or  if  there  are 
two  or  more,  a  majority  of  them,  have  the  same  power  to 
issue  a  subpoena,  to  swear  a  witness,  and  to  compel  his  at- 
tendance, that  a  justice  of  the  peace  has,  in  an  action  pend- 
ing before  him. 

Note  to  section  214. 

This  section  is  the  same  as  section  2987  of  the  Code  of  Civil  Procedure, 
relating  to  justices'  courts,  which  was  made  applicable  by  section  1368 
of  the  Consolidation  Act  (Laws  1882,  chap.  410). 


304  Commission;   Depositions.        §§215,216. 

§215.  Receipt  of  clerk;  return  of  commission  by. —  The 
clerk  of  the  court  in  the  district  in  which  the  action  is  pend- 
ing, must  on  receiving  the  package,  containing  the  commis- 
sion, transmitted  to  him  by  mail  or  otherwise,  open  and  file 
it,  indorsing  thereupon  the  date  of  his  so  doing-.  It  must 
remain  on  tile  with  him,  until  the  trial;  but  either  party  is 
entitled  to  inspect  it  on  file. 

Note  to  section  215. 

This  section  is  the  same  as  section  2987  of  the  Code  of  Civil  Pro- 
cedure, relating  to  justices'  courts,  which  was  made  applicable  by  sec- 
tion  1368  of  the  Consolidation  Act    (Laws   1882,  chap.  410). 

§  216.  Deposition  to  take  testimony  conditionally. —  Either 
party  to  an  action  pending  in  the  municipal  court  may  ap- 
ply in  the  district  in  which  the  action  is  pending,  for  an  order 
to  have  the  testimony  of  any  witness  who  is  about  to  de- 
part from  the  city  of  Xew  York,  and  will  probably  continue 
absent,  when  the  testimony  is  required,  or  is  so  sick  or  infirm 
as  to  afford  reasonable  ground  to  believe  that  he  will  not 
be  able  to  attend  the  trial;  or  that  any  other  special  circum- 
stances exist  which  render  it  proper  that  he  be  examined  as 
prescribed  in  this  article,  taken  conditionally  to  be  used  on 
the  trial  of  such  action,  subject  to  the  provisions  of  this 
article. 

Notes  to  section  216. 

This  section  is  taken  from  section  1369  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  and  from  section  871  of  the  Code  of  Civil 
Procedure,  which  was  made  applicable  to  this  court  by  said  section 
1369  of  the  Consolidation  Act. 

Section  1369  makes  sections  871  to  883,  Code  of  Civil  Procedure,  ap- 
plicable to  this  court,  and  all  of  them  have  been  embodied  into  this 
act,  except  section  876,  as  follows:  Section  216  of  this  act  is  taken 
from  section  871,  Code;  section  217  from  872;  section  218  from  879; 
section  219  from  873;  section  220  from  874:  section  221  from  S7-"> : 
section  222  is  new;  section  223  from  877;  section  224  from  880;  section 
225  from  881  and  882,  and  226  from  883. 

Framing  complaint. —  A  witness  cannot  be  examined  under  sections 
871  to  876  of  the  Code  of  Civil  Procedure,  for  the  purpose  of  enabling 
the  plaintiff  to  frame  a  complaint  in  an  action  which  is  not  yet  com- 
menced.    Matter  of  Anthony,  42  App.  Div.  66. 


§217.  Commission  ;  Depositions.  305 

§217.  Affidavit  on  application;  requirements  of. —  The 
party  desiring  to  take  a  deposition,  as  prescribed  in  the  last 
section,  must  present  to  the  court  in  the  district  in  which 
the  action  is  pending,  an  affidavit  showing : 

1.  The  title  and  nature  of  the  action.  The  name  and 
residence  of  the  person  to  be  examined.  That  the  testi- 
mony of  such  person  is  material  and  necessary  for  the  party 
making  such  application  or  for  the  prosecution  or  defense 
of  such  action. 

2.  That  the  person  to  be  examined  is  about  to  depart 
from  the  city  of  New  York,  or  that  he  is  so  sick  or  infirm  as 
to  afford  reasonable  ground  to  believe  that  he  will  not  be 
able  to  attend  the  trial,  or  that  any  other  special  circum- 
stances exist  which  render  it  proper  that  he  should  be  ex- 
amined, as  prescribed  in  this  chapter;  but  this  subdivision 
does  not  apply  to  a  case  where  the  person  to  be  examined  is 
a  party  to  the  action,  except  in  the  case  of  sickness  or  in- 
firmity. 

3.  If  the  party  sought  to  be  examined  is  a  corporation,  the 
affidavit  shall  state  the  name  of  the  officers  or  directors 
thereof,  or  any  of  them  whose  testimony  is  necessary  and 
material,  or  the  books  and  papers  as  to  the  contents  of  which 
an  examination  or  inspection  is  desired,  and  the  order  to  be 
made  in  respect  thereto,  shall  direct  the  examination  of 
such  persons  and  the  production  of  such  books  and  papers. 

Notes  to  section  217. 

This  section  is  constructed  from  section  872  of  the  Code  of  Civil 
Procedure,  which  was  made  applicable  to  this  court  by  section  1369 
of  the  Consolidation  Act   (Laws  1882,  chap.  410). 

Affidavit  must  conform  strictly  to  section  872  in  all  matters  of  sub- 
stance, although  a  trifling  change  of  expression  will  not  vitiate.  Beech 
v.  Mayor,  14  Hun,  79;  s.  c,  4  Abb.  N.  C.  236;  Ludewig  v.  Pariser,  4 
Abb.  N.  C.  246;  Matter  of  Bryan,  3  Abb.  N".  C.  289;  Dunham  V.  Mer- 
chants' M.  Ins.  Co.,  6  Abb.  N.  C.  70;  Greer  v.  Allen,  15  Hun,  432.  See 
also  rule  89,  Supreme  Court. 

It  may  be  made  by  the  parties,  agent  or  attorney,  if  good  reason  be 
shown.  Corbitt  v.  De  Comeau,  54  How.  506 ;  Borman  v.  Pierce,  56  How. 
251;  Hynes  v.  McDermott,  55  How.  259;  Hale  v.  Roger,  22  Hun,  19; 
Corbitt  v.  De  Comeau,  4  Abb.  N.  C.  252;  Lane  v.  Williams,  22  Week. 
Dig.  16. 

20 


306  Commission  ;  Depositions.         §§  218,  219. 

The  affidavit  should  show  the  witness  is  then  sick,  and  that  what  is 
expected  to  be  proven  is  derived  from  knowledge,  fact,  or  circumstance, 
showing  a  reasonable  ground  for  the  expectation,  with  reference  to  the 
testimony  to  be  given.  See  Johnson  v.  ~New  Home  8.  M.  Co.,  62  App. 
Div.  157,  70  N.  Y.  Supp.  875.  See  also  F.  L.  d  T.  Co.  v.  Siefke,  144 
N.  Y.  355. 

§  218.  Deposition  by  consent. —  The  parties  to  an  action 
may  stipulate  in  writing  that  an  order  specified  in  section 
two  hundred  and  sixteen  of  this  act  may  be  granted,  in  which 
case  an  affidavit,  as  required  by  the  preceding  sections  shall 
not  be  necessary.  But  this  section  does  not  apply  to  a  case 
where  the  person  to  be  examined  is  confined  in  a  prison  or 
jail  within  the  state. 

Notes  to  section  218. 

This  section  is  taken  from  section  879  of  the  Code  of  Civil  Procedure, 
which  was  made  applicable  by  section  1369  of  the  Consolidation  Act 
(Laws  1882,  chap.  410). 

As  to  taking  deposition  by  agreement,  see  Smith  v.  Hervis,  59  Hun, 
552,  36  N.  Y.  St.  Rep.  917. 

§  219.  Order  for  examination. —  The  court  to  whom  an  affi- 
davit is  presented,  as  provided  in  section  two  hundred  and 
seventeen  of  this  act,  may,  if  the  opposing  party  or  his  rep- 
resentative is  not  present,  require  that  a  reasonable  notice 
of  the  application  be  given,  or  may  act  on  the  application 
at  the  time  of  such  presentation,  and  must  grant  an  order 
for  the  taking  of  the  deposition,  if  satisfied  of  the  truth  of 
the  matter  stated  in  the  affidavit,  and  may  in  his  discretion 
designate  and  limit  the  particular  matters  on  which  the  ex- 
amination is  to  be  conducted.  The  order  may  require  that 
the  examination  be  conducted  before  the  court,  at  the  time 
fixed,  or  may  permit  such  examination  to  be  conducted  at 
the  place  where  the  person  to  be  examined  is  at  the  time 
fixed  for  said  examination.  Where  the  deposition  is  not 
taken  in  court,  the  order  may  permit  the  examination  of  the 
person  making  the  deposition  to  proceed  after  having  been 
sworn  before  an  officer  authorized  to  take  and  administer 
oaths. 


§§220,221.       Commission  ;  Depositions.  307 

Notes  to  section  219. 

This  section  is  taken  from  section  873  of  the  Code  of  Civil  Procedure, 
which  was  made  applicable  to  this  court,  by  section  1369  of  the  Con- 
solidation Act  (Laws  1882,  chap.  410). 

Order  is  a  matter  of  right,  but  in  a  proper  case  may  be  vacated  by  the 
court.  For  form  of  sufficient  order  see  Webster  v.  Stockwell,  3  Abb. 
N.  C.  115. 

Vacating  order. —  See  Preston  v.  Hencker,  9  Abb.  N.  C.  68 ;  Werthim 
v.  Page,  10  Week.  Dig.  26;  First  Nat.  Bank  v.  Lindenmeyer,  29  N.  Y. 
St.  Rep.  300;  Koehler  v.  Rewards,  29  N.  Y.  St.  Rep.  384,  8  N".  Y.  Supp. 
504;  Cross  v.  National  F.  Ins.  Co.,  17  Civ.  Proc.  Rep.  199,  6  N.  Y.  Supp. 
84;  Golin  v.  Town  of  Mooers,  29  N.  Y.  St.  Rep.  213. 

§  220.  Punishment  for  disobeying  order;  witness  fees. — 
Witnesses  fees,  as  provided  in  this  act,  for  attendance  upon 
a  trial,  must  be  paid  or  tendered  when  the  order  is  served 
upon  the  party  or  other  person  required  to  attend.  If  the 
party  or  person  so  served  fails  to  obey  the  order  his  attend- 
ance may  be  compelled,  and  he  may  be  punished  in  like 
manner,  and  the  proceedings  thereon  are  the  same,  as  if  he 
failed  to  obey  a  subpoena,  issued  from  the  municipal  court. 

Notes   to  section   220. 

This  section  is  taken  from  section  874  of  the  Code  of  Civil  Procedure, 
which  was  made  applicable  to  this  court  by  section  1369  of  the  Con- 
solidation Act   (Laws   1882,  chap.  410). 

Compelling  the  attendance  and  testimony  of  a  witness,  and  punish- 
ment.—  See  §§  198  and  200  and  notes. 

Witness  fees  are  twenty-five  cents  for  each  day's  attendance,  and 
if  the  witness  resides  more  than  three  miles  from  the  place  of  attend- 
ance to  eight  cents  for  each  mile  going  to  the  place  of  attendance.  See 
§§   197  and  352. 

§  221.  Service  of  order.—  A  copy  of  the  order  and  of  the 
affidavit  upon  which  it  was  granted  must  be  served  at  least 
two  days  before  the  time  fixed  for  the  examination,  upon 
the  attorney  for  each  party  to  the  action,  in  like  manner 
as  a  paper  in  the  action;  or  if  a  party  has  not  appeared  in 
the  action  they  must  be  served  upon  him  as  directed  by  the 
order. 


308  Commission;    Depositions.        §§222,223. 

Notes  to  section   221. 

This  section  is  part  of  section  875  of  the  Code  of  Civil  Procedure, 
which  was  made  applicable  to  this  court  by  section  13G9  of  the  Consoli- 
dation Act   (Laws  1882,  chap.  410). 

Service. —  Where  a  party  has  appeared,  service  upon  his  attorney  is 
sufficient,  but  he  must  be  served  personally,  either  with  the  order,  or 
a  subpoena,  and  witness  fees  must  be  paid,  or  tendered,  before  he  can 
be  punished  for  contempt  in  not  attending.  Tebo  v.  Baker,  16  Hun, 
182;  Freiburg  v.  Branigan,  3  Abb.  N.  C.  121 ;  Wood  v.  Keil,  3  Abb.  N.  C. 
122;  Pake  v.  Proal,  2  Abb.  N.  C.  418;  Webster  v.  Stockwell,  3  Abb.  N.  C. 
115;  Thompson  v.  Sickles,  3  Abb.  N.  C.  121,  note;  Dunham  v.  Mer- 
chants' M.  Ins.  Co.,  6  Abb.  N.  C.  70;  Mayer  v.  Knall,  56  How.  214; 
Riddle  v.  Crawl,  5  Week.  Dig.  277;  Tebo  v.  Baker,  77  N.  Y.  33;  Dudley 
v.  N.  Y.  Press  Club,  53  Hun,  347;  Cowen  v.  Ferguson,  7  N.  Y.  St.  Rep. 
403,  18  Abb.  N.  C.  241. 

§  222.  Adjournment  of  examination. —  The  court  may  upon 
good  cause  shown  adjourn  the  time  for  taking  said  exam- 
ination within  the  limitations  and  provisions  of  this  act 
applying  to  adjournments. 

Notes  to  section  222. 

The  commissioners  appointed  to  revise  and  codify  the  laws  relating 
to  this  court,  by  chapter  218,  Laws  1901,  in  their  report  to  the  Legisla- 
ture, say :  "  The  foregoing  is  a  new  section,  but  its  purpose  is  clear. 
Nothing  is  said  in  this  section  about  adjournments  by  consent,  for  the 
reason  that  such  a  privilege  might  be  abused." 

"  Good  cause  shown." —  This  section  does  not  prevent  an  adjourn- 
ment by  consent  when  so  stipulated  by  the  parties  or  their  attorneys; 
that  would  be  "good  cause  shown"  for  the  justice  to  agree  to  the  ad- 
journment until  there  is  abuse  thereof,  when  there  would  be  no  longer 
"  good  cause  shown."  See  Keating  v.  Serrell,  5  Daly,  278 ;  Barnes 
v.  Badger,  41  Barb.  98;  People  ex  rel.  Struller  v.  McKean,  27  Misc. 
Rep.  657;  Mayor  v.  Friedman,  44  App.  Div.  518;  Lett  v.  Stewart,  62 
X.  Y.   Supp.   1114. 

§  223.  Party  confined  in  prison. —  Where  the  party  or 
other  person  to  be  examined  is  confined  in  a  prison  or  jail 
within  the  state,  under  sentence  for  a  misdemeanor  or  fel- 
ony, that  fact  must  be  stated  in  the  affidavit,  and  his  depo- 
sition may  be  taken  as  prescribed  in  the  foregoing  sections 
as  if  he  was  not  so  confined,  except  that  in  such  a  case  the 
granting  or  refusing  the  order  is  always  in  the  discretion 


§§  224,  225.       Commission  ;   Depositions.  301) 

of  the  court.  The  order  must  require  the  production  of 
the  prisoner  by  the  person  in  charge  of  the  prison  or  jail, 
at  the  prison  or  jail,  but  it  may  prescribe  such  regulations 
and  restrictions  with  respect  thereto  as  the  court  deems 
proper. 

Note  to  section  223. 

This  section  is  substantially  the  same  as  section  877  of  the  Code  of 
Civil  Procedure,  which  was  made  applicable  to  this  court  by  section  1369 
of  the  Consolidation  Act  (Laws  1882,  chap.  410). 

§  224.  Rules  for  examination;  manner  of  taking  and  return- 
ing deposition ;  refusal  of  person  examined  to  answer. —  The 
deposition  shall  be  in  the  form  of  question  and  answer,  and 
when  completed  must  be  carefully  read  to  and  subscribed 
by  the  person  examined;  and  within  three  days  thereafter, 
unless  sooner  required  by  the  order,  must  be  filed  in  the 
office  of  the  clerk  of  the  district  in  which  the  action  is  pend- 
ing, together  with  the  stipulation  or  the  affidavit  on  which 
the  order  was  granted;  and  proof  of  the  service  of  the  order 
and  of  the  affidavit.  If  upon  an  examination,  the  person 
examined  refuses  to  answer,  that  fact  must  be  reported  to 
the  court,  which  must  determine  whether  the  question  was 
relevant  and  the  witness  bound  to  answer. 

Notes  to  section  224. 

This  section  is  constructed  from  section  880  of  the  Code  of  Civil  Pro- 
cedure, which  was  made  applicable  to  this  court  by  section  1369  of  the 
Consolidation  Act   (Laws  1882,  chap.  410). 

Objection;  when  to  be  taken. —  Where  the  testimony  of  a  witness 
is  taken  de  bene  esse,  an  objection  to  the  form  of  the  question  asked 
him  should  be  taken  when  the  deposition  is  made.  Any  formal  objection 
not  taken  before  the  officer  taking-  the  deposition  will  be  deemed  to  have 
been  waived.     Hcbbard  v.  Haughian,  70  N.  Y.  54. 

§225.  Deposition  may  be  read  in  evidence;  when. —  The 
deposition  may  be  read  in  evidence,  by  either  party  at  the 
trial  of  the  action,  if  it  be  satisfactorily  proved  that  the 
witness  is  dead  or  is  unable  to  personally  attend  by  reason 
of  his  insanity,  sickness  or  other  infirmity,  or  that  he  is  con- 
fined in  a  prison  or  jail,  or  that  he  has  been  and  is  absent 


310  Commission:    Depositions.  §  226. 

from  the  city  of  New  York,  so  that  his  attendance  could 
not,  with  reasonable  diligence  be  compelled  by  subpoena. 

Notes   to   section    225. 

This  section  is  constructed  from  sections  881  and  882  of  the  Code 
of  Civil  Procedure,  which  were  made  applicable  to  this  court  by  section 
1369  of  the  Consolidation  Act   (Laws  1882,  chap.  410). 

Objections. —  Objections  of  form  must  be  taken  at  the  time  of  taking 
the  deposition,  or  else  they  are  waived.  This  was  the  rule  under  the 
former  statute,  and  no  doubt  is  the  same  now.  Hibbard  v.  Haughian, 
70  N.  Y.  54. 

Oral  examination  may  be  had  of  the  witness,  and  also  his  deposi- 
tion read.     Misland  v.  Boynton,  14  Hun,  625. 

Waiver  of  irregularities. —  See  Mayer  v.  Ehrlieh,  33  Hun,  2,  19 
Week.  Dig.  376;   Rushmore  v.  Hall,  12  Abb.  420. 

Correction  of  deposition. —  The  deposition  may  be  returned  to  the 
commissioners  for  ratification.  Wells  v.  Hub  Pub.  Co.,  12  Week.  Dig. 
425. 

§  226.  Effect  of  deposition. —  The  deposition,  so  read  in 
evidence  has  the  same  effect,  and  no  other,  as  the  oral  testi- 
mony of  the  witness" would  have;  and  an  objection  to  the 
competency  or  credibility  of  the  witness,  or  to  the  relevancy 
or  substantial  competency  of  a  question  put  to  him,  or  of  an 
answer  given  by  him,  may  be  made  as  if  the  witness  was 
then  personally  examined  and  without  being  noted  upon 
the  deposition. 

Note    to    section    226. 

This  section  is  the  same  as  section  883  of  the  Code  of  Civil  Pro- 
cedure, which  was  made  applicable  to  this  court  by  section  1369  of  the 
Consolidation  Act    (Laws   1882,  chap.  410). 

Note. — There  are  no  sections  from  226  to  230. 


§230.  Trial;  Trial  Jurors.  311 

TITLE    VI. 

Trial;  Trial  Jurors. 

Section  230.  Issue  of  fact  and  law;  judgment  within  what  time  to  be 
rendered. 

231.  Trial  by  jury;   drawing  the  jury. 

232.  Court  may  direct  trial  by  jury;   when. 

233.  Trial  jurors;  list  of,  to  be  furnished  clerk  of  each  district. 

234.  Jury  of  twelve;  when. 

235.  How  jury   summoned;   notice. 

236.  Talesmen. 

237.  Ballots  of  jurors  summoned  but  not  drawn. 

238.  Adjournments  after  return  of  jury. 

239.  Verdict;  requisites. 

240.  Swearing  the  jury. 

241.  Submission  of  a  controversy  upon  facts  admitted. 

242.  Papers  to  be  filed. 

243.  Subsequent  proceedings  regulated. 

§  230.  Issue  of  fact  and  law;  judgment  within  what  time  to 
be  rendered —  Upon  the  issue  of  fact  joined,  if  a  jury  trial 
be  not  demanded,  as  required  by  this  act,  the  court  must 
hear  the  evidence,  and  decide  all  questions  of  fact  and  law, 
and  render  judgment  accordingly  within  fourteen  days  from 
the  time  the  same  is  submitted  for  that  purpose,  except 
when  the  defendant  is  under  arrest,  and  has  not  given  secu- 
rity for  his  appearance;  in  such  case  the  court  shall  render 
judgment  immediately  after  the  close  of  the  trial,  and  ex- 
cept where  further  time  is  given  by  the  consent  of  parties 
or  their  attorneys.  All  issues  of  law  shall  be  heard  and 
decided  by  the  court,  without  a  jury. 

Notes  to   section   230. 

This  section  is  taken  from  section  1384  of  the  Consolidation  Act 
(Laws  1882,  chap.  410). 

Since  the  year  1857  the  "justice"  had  eight  days  to  decide.  Laws 
1857,  chap.  344,  §  47.  This  section  extends  the  time  to  fourteen  days, 
which,  in  these  days  of  speed,  seems  like  retrogration. 

As  to  "Judgment  by  default,"  see  §   147. 

As  to  "  Offer  to  allow  judgment,"  see  §   148. 

As  to  "Judgments,"  generally,  see  tit.  VII,  art.  I,  §§  248  to  256, 
both  inclusive. 


312  Tkial;   Trial  Jikors.  §  230. 

After  time  limited  for  decision.  — Judgment  rendered  after  the  time 
limited  by  law.  or  consent  of  the  parties,  is  void  for  want  of  jurisdic- 
tion, and  will  be  reversed.  Lambert  v.  Solomon,  28  App.  Div.  562,  59 
N.Y.  Supp.  076. 

Consent  to  decide  after  the  time  limited  by  statute. —  In  the  case  of 
Keating  v.  Serrell,  5  Daly,  278,  the  court  held  that  parties  may,  by 
stipulation,  authorize  the  justice  to  render  judgment  after  the  expi- 
ration of  the  time  limited  by  the  statute.  See  also  Barnes  v.  Badger, 
41  Barb.  98;  People  ex  rel.  Struller  v.  McKean,  27  Misc.  Rep.  657; 
Mayor  v.  Friedman,  44  App.  Div.  518;  Litt  v.  Stewart,  62  N.  Y.  Supp. 
1114. 

Failure  to  decide. —  A  justice  loses  jurisdiction  unless  his  derision 
is  rendered  within  the  period  prescribed  by  the  statute.  Berrian  v. 
Olmstead,  4  E.  D.  Smith,  279;  Sibley  v.  Howard,  4  Den.  72;  Wiseman 
v.  Panama  I'.  A'.  Co.,  1  Hilt.  300;  Bremer  v.  Merrill,  1  Daly,  485;  s.  c, 
29  How.   259. 

All  jurisdiction  terminates  on  the  failure  of  the  justice  to  decide 
the  case  within  eight  (now  fourteen)  days  after  it  was  finally  sub- 
mitted to  him  for  decision,  and  in  that  case  it  abates  within  the  legal 
meaning  of  that  term  as  employed  in  an  undertaking  given  to  re- 
plevy a  chattel.  Frost  v.  Kopp,  13  Civ.  Proc.  Rep.  377,  13  N.  Y.  St. 
Rep.  707. 

The  justice  must  not  only  decide  a  case  within  eight  (now  fourteen) 
days  after  its  submission,  but  must  also  deliver  his  decision  to  the 
clerk  to  be  recorded;  otherwise  he  loses  jurisdiction,  and  plaintiff  may 
commence  a  new  action.  Dalton  v.  Loughlin,  4  Abb.  N.  C.  187;  Ovis 
v.  Curtis,  28  N.  Y.  Supp.  728. 

Mandamus. —  In  The  People  ex  rel.  O'Neil  v.  Jerolomon,  Justice, 
etc.,  Superior  Court,  Special  Term,  reported  in  the  New  York  Law  Jour- 
nal, May  11,  1892,  McAdam,  J.,  wrote  the  following  opinion:  "A  Dis- 
trict Court  justice  must  render  judgment  within  eight  (now  fourteen) 
days  after  the  cause  is  finally  submitted.  Cons.  Act,  1882,  §  1384.  In 
this  instance  the  justice  filed  the  papers,  with  a  written  memoran- 
dum (purporting  to  dispose  of  the  case),  stating,  in  substance,  that 
the  plaintiff  was  a  hard-working  man,  did  not  fully  understand  the 
purport  of  the  papers  which  the  defendant  introduced  at  the  trial, 
and  that,  under  the  circumstances,  the  justice  deemed  it  proper  to  let 
the  case  go  out  of  court  without  imposing  any  further  loss  on  the 
plaintiff.  This  may  seem  equitable,  but  there  is  no  warrant  for  such 
practice.  Cicero,  in  one  of  his  addresses  to  the  jury,  pointed  out  to 
them  certain  duties:  'They  are  to  consider  their  duty  not  only  a 
power,  but  a  trust;  it  may  be  their  duty  to  acquit  their  enemy  and 
convict  their  friend;  they  must  consider  not  what  their  own  inclina- 
tions would  lead  them  to  do,  but  what  the  law  and  their  oaths  oblige 
them  to  do.'     Ram  on  Facts,  Townshend's  Notes,  298.     That  the  jus- 


§230.  Trial;  Trial  Jurors.  313 

tice  acted  conscientiously  and  from  goodness  of  heart  goes  without 
saying,  but  he  had  no  such  discretion  in  the  premises  as  that  he 
assumed  to  exercise.  His  duty  is  found  in  the  statute  —  is  mandatory 
—  and  can  be  discharged  only  by  deciding  the  controversy  according 
to  his  understanding  of  the  evidence  and  the  law  applicable  thereto, 
without  sympathy  or  regard  to  results  (however  serious)  to  either 
litigant.  Where  a  judicial  duty  is  imposed,  nothing  must  stand  in 
the  way  of  its  complete  performance.  Every  case  must  be  decided  on 
its  merits  and  within  the  time  prescribed  by  law,  no  matter  how  un- 
pleasant the  duty,  which  cannot  be  evaded.  The  responsibility  and 
all  it  implies  must  be  assumed,  borne,  and  discharged.  It  follows  that 
the  relator  is  entitled  to  a  mandatory  writ  requiring  the  justice  to 
put  his  memorandum  in  legal  form  by  deciding  the  issues  submitted 
to  him.  This  court  does  not  direct  the  manner  in  which  the  justice 
shall  dispose  of  the  case  —  merely  that  he  decide  it  in  legal  form  in 
favor  of  one  party  or  the  other,  so  that  the  party  aggrieved  may 
appeal  if  he  desires  to  do  so.  See  56  Hun,  626;  s.  c,  24  Abb.  N.  C. 
477.  No  costs.  The  writ  must  be  served  on  the  justice  and  a  copy 
thereof  on  the  plaintiff,  that  he  may  have  knowledge  of  the  proceed- 
ings." 

Retrial. —  The  court  loses  jurisdiction  of  a  cause  if  the  issues  are 
not  decided  within  the  eight  (now  fourteen)  days  specified  by  statute, 
or  within  the  time  for  which  a  stipulation  extending  the  statutory 
limit  of  eight  (now  fourteen)  days  provide,  and  no  decision  being  ren- 
dered, and  no  certificate  for  a  jury  trial  being  made,  within  the  time, 
a  trial  had  thereafter,  against  objection,  is  nugatory,  and  the  objec- 
tion must  be  sustained.  Samura  v.  Haggerty,  30  Misc.  Rep.  745,  62 
N.  Y.  Supp.  1084. 

Testimony  admissible  that  decision  not  communicated  to  clerk  within 
eight  days. —  As  the  rule  that  a  failure  of  the  justice  to  deliver  his 
decision  to  the  clerk,  within  eight  (now  fourteen)  days  after  submis- 
sion of  the  cause,  is  fatal  to  the  jurisdiction  of  the  court  over  the 
case,  testimony  is  admissible  that  the  decision  of  the  justice  was  not 
communicated  to  the  clerk  within  the  time  allowed.  Sire  v.  Merrick, 
15  Daly,  346. 

Sunday. —  If  the  last  day  fall  on  Sunday,  judgment  must  be  given  on 
the  preceding  day.  Ready  Roofin'g  Co.  v.  Chamberlain,  52  How.  123, 
6  Daly,  521,  1  City  Ct.  Rep.  222. 

Where  the  eighth  (now  fourteenth)  day  after  the  trial  fell  on  Sun- 
day, and  the  justice  did  not  render  his  decision  until  the  day  follow- 
ing, he  lost  jurisdiction  of  the  case,  and  the  judgment  was  void. 
Ready  Roofing  Co.  v., Chamberlain,  6  Daly,  521. 

When  sufficiently  rendered. —  A  judgment  is  sufficiently  rendered 
when  an  entry  is  made  by  the  justice  in  his  minutes,  or  a  memorandum 
of  it  is  made  on  the  papers  or  copies  thereof,  if  made  in  five  days,  al- 


314  Trial;  Trial  Jurors.  §231. 

though  no  entry  is  made  in  the  docket  until  afterward.     Hisk  v.  Uff'cl- 
man  et  al.,  7  Misc.  Rep.  133. 

§  231.  Trial  by  jury;  drawing  the  jury. —  At  any  time  when 
an  issue  of  fact  is  joined,  either  party  may  demand  a  trial 
by  jury,  and  unless  so  demanded  at  the  joining  of  issue,  a 
jury  trial  is  waived.  The  party  demanding  a  trial  by  jury 
shall  forthwith  pay  to  the  clerk,  the  sum  of  four  dollars  and 
fifty  cents.  In  default  of  which  payment  the  court  shall 
proceed  as  if  no  demand  for  trial  by  jury  had  been  made. 
When  a  jury  trial  is  demanded,  the  trial  of  the  case  may 
be  adjourned  within  the  limitations  provided  in  this  act, 
until  the  time  fixed  for  the  return  of  the  jury.  The  clerk  in 
each  action  or  special  proceeding,  in  which  a  jury  trial  is  to 
be  had,  must  publicly  draw  twelve  persons  from  the  undrawn 
jury  box,  and  deliver  the  list  thereof  to  a  marshal,  or  to  a 
person  deputed  by  the  court  for  that  purpose,  with  a  written 
or  printed  notice,  directed  to  each  person  named  in  the  list, 
requiring  him  to  attend  as  directed  as  a  juror,  at  a  time 
specified  therein,  out  of  which  number  six  of  the  persons 
attending  shall  be  drawn  to  try  the  cause,  provided  that 
number  appear. 

Notes  to  section   231. 

This  section  is  taken  from  section  2990  of  the  Code  of  Civil  Pro- 
cedure, relating  to  justices'  courts,  and  from  the  first  paragraph  of 
section  1372  of  the  Consolidation  Act  (Laws  1882,  chap.  410).  which 
latter  was  taken  from  Laws  1857,  chap.  344,  §  34.  It  also  includes 
section  1377,  Consolidation  Act,  which  was  Laws  1857,  chap.  344,  §  39. 

As  to  jury  trial  in  an  action  upon  a  bastardy  or  abandonment 
bond  and  upon  the  bond  of  a  marshal,  see  notes  to  §  1.  subds.  4  and  5. 

The  language  at  the  beginning  of  this  section  is  remarkable.  It 
reads,  "  At  any  time  when  an  issue  of  fact  is  joined,  either  party  may 
demand  a  trial  by  jury."  "At  any  time,"  means  the  time  "  when  " 
an  issue  of  fact  is  joined,  and  is  the  only  time  when  the  jury  trial  can 
be  demanded.  The  reading  of  the  former  section  1372  is  perfect.  It 
reads,  "  A  jury  trial  must  be  demanded  at  the  time  of  the  joining  of  an 
issue  of  fact,"  etc. 

Demand  must  be  made  upon  joining  issue,  with  notice  to  opposite 
party,  before  adjournment.  Mead  v.  Darragh,  1  Hilt.  395 ;  Shannon  v. 
Kennedy,  1  E.  D.  Smith,  346.  See  Rubenstein  v.  Silberfeld,  24  Misc. 
Rep.  201,  52  N.  Y.   Supp.  703. 


§231.  Trial;   Trial  Jurors.  315 

Where,  in  consequence  of  the  absence  of  the  justice,  the  cause  is, 
upon  the  return  day,  adjourned  by  the  clerk,  the  proper  time  to  de- 
mand a  jury  trial  is  after  joining  issue  upon  the  adjournment  day, 
and  not  upon  the  original  return  day  of  the  summons.  Meceh  v. 
Brown,  4  Abb.  Pr.  19;  s.  c,  1   Hilt.  257. 

On  the  return  day  of  summons  the  defendant  demanded  a  jury 
trial,  and  on  the  same  day  tendered  the  fees  to  the  clerk,  who  de- 
clined to  receive  them,  and  directed  defendant  to  pay  them  within 
five  days  before  trial.  A  subsequent  tender  was  refused  as  being  too 
late.  The  justice,  upon  a  submission  of  the  question  to  him,  directed 
the  clerk  to  receive  the  sum  tendered  and  issue  a  venire.  Held  no 
error;  that  at  most  the  failure  to  strictly  comply  with  the  statute 
placed  the  parties  in  the  same  situation  as  if  no  demand  for  a  jury 
trial  had  been  made,  and,  in  such  case,  the  justice  has  power,  under 
section  1372  of  the  Consolidation  Act.  as  amended  in  1891.  in  his  dis- 
cretion, to  order  a  jury  trial,  the  only  requirement  as  to  payment  of 
fees  in  that  event  being  that  it  should  be  made  before  rendition  of 
judgment.     The  Equitable  Gas  Light  Co.  v.  French.  10  Misc.  Rep.  749. 

Employee  suing  employer. —  Although  by  section  44  an  employee 
suing  his  employer  for  a  sum  less  than  $50  need  pay  no  fees,  yet  if 
he  wants  a  jury  trial  he  must  pay  $4.50. 

Jury  fees. —  For  tabulated  statement  of,  see  notes  to  §  356. 

Poor  person  may  prosecute  without  paying  any  fees  to  any  officer. 
Code  Civ.  Proc,  §  461,  made  applicable  by  section  3347,  subdivision 
3,  of  said  Code,  as  to  demanding  a  jury  trial.     See  notes  to  §   45. 

Six  jurymen. —  The  statute  authorizing  a  trial  by  a  jury  of  six,  is 
not  unconstitutional  if  it  also  allows  the  defendant  the  right  to  re- 
move the  cause  to  a  court  of  record,  where  he  could  have  a  trial  by  a 
jury  of  twelve.  People  ex  rel.  Metropolitan  Board  of  Health  v.  Lane, 
6  Abb.  Pr.  N.  S.  105. 

Twelve  jurymen;    when. —  See   §   234. 

Time  of  deposit. —  Where,  upon  a  proper  demand  and  tender  of  fees 
for  jury  trial,  the  clerk  directed  the  fees  to  be  paid  five  days  before 
the  trial,  and  then  upon  a  tender  of  such  fees  at  that  time  refused  the 
same  as  being  too  late,  the  justice  directed  the  clerk  to  receive  the 
fees  and  this  was  declared  to  be  no  error.  The  Equitable  Gas  Light 
Co.  v.  French.  10  Misc.  Rep.  749. 

Waiver. —  A  jury  trial  is  waived  and  the  right  is  gone  unless  de- 
manded upon  joining  issue  with  notice  to  opposite  party,  and  before 
adjournment.  Shannon  v.  Kennedy,  1  E.  D.  Smith,  346;  Mead  v.  Dar- 
ragh,  1  Hilt.  395. 

A  party  who  has  demanded  a  trial  by  jury  may  waive  that  mode  of 
trial,  by  consent  in  open  court.     Horsford  v.  Carter,  10  Abb.   Pr.  452. 

Failure  to  pay  the  jury  fees  in  season  for  the  issuing  of  the  venire  is 
a  wTaiver  of  the  right  to  jury  trial.     Kilpatrick  v.  Carr,  3  Abb.  Pr.  117. 


316  Tkial;  Tbial  Jubobs.  §-32. 

After  demanding  a  jury  trial  and  adjournment  of  the  cause  to  pro- 
cure the  jury,  and  on  the  adjournment  day  neglecting  to  appear,  the 
justice  can  proceed  to  hear  the  cause  without  a  jury.  Kilpatrick  v. 
Can;  3  Abb.  Pr.  117. 

The  plaintiff  at  the  time  of  joining  of  issue  demanded  a  jury  trial, 
and  paid  the  jury  fee;  after  several  adjournments  of  the  cause,  the 
case  being  called  for  trial,  the  plaintiff  waived  a  jury,  and  against  the 
objections  of  the  defendants,  the  justice  dismissed  the  jury  and  heard 
the  cause  alone.  Held  no  error.  The  N.  Y.  Dyeing  &  Printing  Estab- 
lishment v.  Fox,  6  Daly,  467. 

§  232.  Court  may  direct  trial  by  jury;  when When  an 

issue  of  fact  has  been  joined  in  an  action  or  special  pro- 
ceeding, and  a  trial  by  jury  has  not  been  demanded,  the 
court  may,  in  its  discretion,  at  any  stage  of  the  action  or 
proceeding,  direct  that  a  trial  thereof  be  had  by  jury,  and  a 
trial  by  jury  shall  thereupon  be  had  in  the  same  manner  as 
though  either  of  the  parties  had  demanded  it,  and  the  court 
shall  require  the  fees  for  the  jurors  and  for  summoning 
them,  to  be  paid  by  plaintiff  and  taxed  as  part  of  the  costs. 
If  after  a  trial  shall  have -been  had  before  the  court,  without 
a  jury,  the  judge  shall,  within  fourteen  days  after  the  sub- 
mission of  the  case  or  proceeding,  certify  that  the  evidence 
is  of  such  a  conflicting  nature  that  he  has  been  unable  to 
determine  the  issue  of  fact,  and  that  he  deems  it  proper  that 
the  same  should  be  tried  by  jury,  he  may,  by  order  set  the 
same  down  for  trial  by  a  jury  for  a  day  not  more  than  eight 
days  from  the  time  of  the  making  of  the  order,  and  there- 
upon the  action  or  proceeding  shall  be  continued  in  court, 
and  tried  by  jury  as  hereinbefore  provided  in  the  case  where 
a  trial  by  jury  is  ordered  by  the  court  before  the  trial. 

Notes  to  section  232. 

This  section  is  taken  from  the  second  paragraph  of  section  1372 
of  the  Consolidation  Act  (Laws  1332,  chap.  410),  which  was  taken 
from  Laws  1857,  chap.  344,  §  47.  Tt  also  includes  section  1377,  Con- 
solidation Act,  which  was  Laws  1857,  chap.  344,  §  34. 

Judge  has  power  to  order  a  jury  trial. —  The  "  judge  "  has  power, 
within  eight  (now  fourteen)  days  after  the  conclusion  of  a  trial  before 
him,  to  direct  a  trial  by  jury.  Zemier  v.  Stearns,  14  Misc.  Rep.  7. 
See  also  Equitable,  etc.  v.  French,  10  Misc.  Rep.  749. 


§233.  Trial;  Trial  Jurors.  317 

Second  trial. —  Where  a  judgment  has  been  reversed  and  a  new  trial 
ordered,  the  justice  has  power,  on  the  second  trial,  to  direct  that  the 
trial  be  had  by  jury.  New  York  Small  Stock  Co.  v.  The  Third  Avenue 
R.  R.  Co.,  16  Misc.  Rep.  64. 

After  appeal  and  new  trial  ordered,  a  jury  trial  may  be  demanded. 
Manheim  v.  Seits,  36  App.  Div.  352,  55  N.  Y.  Supp.  321. 

Stipulation  by  the  parties  that  the  justice  may  have  additional  time 
beyond  the  time  required  by  law  for  his  decision,  after  the  submission 
of  the  case,  in  which  to  decide  it, —  Held  to  operate,  also  to  extend  the 
time  within  which  to  make  a  certificate  that  he  was  unable  to  decide 
it,  and  to  order  a  jury  trial.  People  ex  rel.  Struller  v.  McKean,  27 
Misc.  Rep.  659,  59  N.  Y.  Supp.  633. 

§  233.  Trial  jurors;  list  of,  to  be  furnished  clerk  of  each  dis- 
trict.—  A  list  of  trial  jurors  for  each  district  of  the  munici- 
pal court  of  the  city  of  New  York,  must  be  selected  by  the 
commissioner  of  jurors  or  other  officer  whose  duty  it  is  by 
law  to  select  jurors  in  each  of  the  counties  included  within 
New  York  city,  and  must  be  selected  for  each  of  said  districts 
by  said  officer  in  whose  county  the  said  district  is  situated, 
and  must  consist  of  two  hundred  jurors  for  each  district. 
Each  juror  so  selected  shall  be  exempt  from  jury  duty  in 
every  other  court.  A  person  shall  not  be  placed  upon  such  a 
list  who  does  not  reside,  or  have  a  place  where  he  regularly 
transacts  his  business  in  person,  within  the  district  for  which 
he  is  selected.  The  said  commissioner  of  jurors  or  other 
officer  shall  on  or  before  the  first  Monday  in  September  in 
each  and  every  year,  furnish  the  clerk  of  the  court  in  each 
of  the  districts  of  said  court  within  the  county  for  which 
said  commissioner  or  other  officer  acts,  with  a  list  of  the 
names,  residence  and  occupation,  of  the  persons  liable  to  do 
jury  duty,  and  who  are  borne  upon  said  list.  The  clerk  of 
the  court  who  shall  receive  such  jury  list,  must  write  on  a 
slip  of  paper  the  name  of  each  of  the  persons  so  furnished, 
and  place  the  same  in  a  box,  to  be  called  the  undrawn  jury 
box.  The  judge  presiding  in  each  district  of  said  court  may 
impose  a  fine  of  twenty-five  dollars  upon  each  person  duly 
drawn  and  notified  to  attend  the  court  as  a  trial  juror,  who 
fails  to  attend  as  required  by  the  notice.  The  clerk  of  the 
court  .must,  within  ten  days  thereafter,  transmit  to  the  com- 


318  Trial;   Trial  Juhoes.  §  234. 

missioner  of  jurors  or  other  officer,  a  certificate  showing  that 
the  fine  has  been  so  imposed,  and  stating  h<»\v  the  notice  to 
attend  was  served  upon  the  delinquent,  in  order  that  the 
same  proceedings  may  be  had,  as  in  the  case  of  a  delinquent 
juror  in  a  court  of  record.  A  clerk  who  violates  this  section 
forfeits  one  hundred  and  fifty  dollars  for  each  offence. 

Notes  to  section  233. 

This  section  is  taken  from  section  1371  of  the  Consolidation  Act 
(Laws  1882,  chap.  410).  which  latter  section  was  substantially  the 
same  as  section  1111.  Code  of  Civil  Procedure.  It  also  includes  section 
1377,  Consolidation  Act,  which  was  Laws  1857,  chap.  344,  §  39. 

For  other  duties  of  the  clerk,  see  article  I,  "  Clerks  and  Officers." 
§§  282  to  289. 

False  swearing;  when  perjury. —  Any  person  who  swears  falsely  in 
an  affidavit,  or  testifies  falsely  upon  an  inquiry  with  regard  to  trial 
jurors,  is  guilty  of  perjury.     Code  Civ.  Proc.  §   1125. 

Qualification,  disqualification,  and  exemption  of  jurors. —  See  Code 
Civ.  Proc,  title  IV.  "Trial  jurors  in  New  York  and  Kings  counties; 
mode  of  selecting  them,  and  procuring  their  attendance."  Sections  1079 
to  1125,  more  particularly  section  1079,  "Qualification  of  trial  jurors." 
Section  1081,  "  Persons  exempt  from  service."  See  also  title  V, 
"Trial  by  Jury."  Section  1166,  ''Persons  drawn,  etc.,  to  form  the 
jury,*'  which  is  made  applicable  to  all  courts  by  section  3347,  sub- 
division 14.  Section  1166  also  contains  a  provision  as  to  persons  who 
shall  be  disqualified  from  sitting  as  jurors.  See  also  title  III,  "  Trial 
Jurors,  except  in  New  York  and  Kings,  Mode  of  Selecting  Them,  and 
Procuring  Their  Attendance."      §§    1027    to    1034. 

By  section  240  of  this  act.  "  the  examination  and  swearing  of  the 
jury  shall  be  the  same  as  prevails  in  courts  of  record." 

Service  in  a  court  not  of  record  —  when  an  excuse.  Code  Civ.  Proc, 
§  1088.  This  section  is  seemingly  in  conflict  with  section  233.  so  that 
section  20  "  governs."     See  §  20. 

Penalty  for  physician  giving  false  certificate  for  the  purpose  of  dis- 
charging, excusing,  or  exempting  a  trial  juror.  See  Code  Civ.  Proc. 
§  1120. 

Punishment  for  bribery  of  officer,  etc.,  by  juror  drawn. —  Code  Civ. 
Proc,  §   1122. 

Punishment  for  officer  accepting  bribes. —  Code  Civ.  Proc,  §  1123. 

Id.;  for  concealing  offer  to  take  bribe,  etc. —  Code  Civ.  Proc,  §  1124. 

§  234.  Jury  of  twelve;  when. —  In  an  action  where  the 
damages,  or  the  value  of  the  chattels  as  claimed  in  the  com- 


§235.  Trial;   Trial  Jurors.  319 

plaint,  exceed  one  hundred  dollars,  if  at  the  time  of  joining 
an  issue  of  fact  the  defendant  demand  a  trial  by  a  jury  of 
twelve  men,  the  court  shall  order  a  jury  of  twelve  to  be 
summoned  to  try  the  issues.  In  such  case  the  clerk  shall 
draw  the  names  of  twenty-four  persons  who  shall  be  sum- 
moned in  the  same  manner  as  in  other  cases  required  by 
law,  and  twelve  of  such  number  shall  be  drawn  to  try  the 
cause.  The  jury  fee  to  be  deposited  in  such  cases,  shall  be 
nine  dollars. 

Notes  to  section  234. 

The  commissioners  say :  "  This  section  is  substituted  for  section 
1373  of  the  Consolidation  Act"  (Laws  1882,  chap.  410),  without  men- 
tioning that  it  is  also  a  substitute  for  section  1369  of  the  Charter  of 
1897  (chap.  378),  as  amended  by  Laws  1901,  chapter  466,  which  has 
been  repealed  by  this  act.  In  the  table  showing  disposition  of  laws 
repealed,  it  is  stated  that  section  1369  of  the  Charter  has  been  dis- 
posed of  by  sections  4  to  8,  inclusive,  and  subjects  stated  in  that  section. 

By  the  Charter  section  1369,  in  all  actions  specified  in  the  Charter 
section  1364,  except  subdivision  8  (an  action  in  behalf  of  the  People  of 
the  State,  etc.),  and  subdivision  10  (an  action  upon  the  bond  of  a 
marshal),  where  the  damages,  or  the  value  of  the  chattels,  exceeds  $100, 
if  a  jury  of  twelve  men  had  been  demanded,  the  justice  had  to  order 
the  same,  and  the  proceedings  and  fees  were  the  same  as  prescribed  in 
section  1373  of  the  Consolidation  Act. 

Section  1373  of  the  Consolidation  Act  was  substantially  Laws  1869, 
chapter  410,  section  234;  also  includes  section  1377  of  the  Consolida- 
tion Act,  which  was  Laws  1857,  chapter  344,  section  39. 

As  to  jury  trial  in  an  action  upon  bastardy  or  abandonment  bond 
and  upon  the  bond  of  a  marshal,  see  notes  to  §   1,  subds.  4  and  5. 

As  to  "  action  to  recover  a  chattel,"  see  §  95. 

Assent  to  a  jury  of  twelve  men. —  See  Foyer  v.  N.  Y.  C.  R.  R.  Co., 
7  Abb.  N.  C.  371. 

Constitutional  right  of  jury  trial  by  twelve  men  in  justice's  court. 
—  See  a  decision  made  in  the  Oneida  County  Court  in  1868,  Baxter 
v.  Putney,  37  How.  Pr.  140. 

Six  jurymen. —  See  §  231  and  notes. 

Time  of  deposit  for  fee  for  six  jurymen. —  See  §  231  and  notes.  The 
time  of  deposit  for  the  jury  fee  of  twelve  jurymen  is  not  expressed  in 
section  234. 

§  235.  How  jury  summoned;  notice. —  The  officer  or  the 
person  deputed,  as  provided  in  section  two  hundred  and  six- 
teen of  this  act,  must  thereupon  immediately  summon  each 


320  Trial;  Trial  Jurors.  §§236,237. 

person  named  in  the  list,  by  giving  him  the  sum  of  twenty- 
five  cents  and  the  notice  mentioned  in  the  last  section  but 
one,  personally,  or  by  leaving  it  at  his  place  of  residence  or 
business,  with  some  person  of  suitable  age  and  discretion, 
and  must  return  the  list  to  the  court,  at  its  opening,  on  the 
day  for  which  the  jury  was  drawn,  specifying  the  persons 
summoned,  and  the  manner  in  which  each  was  notified. 

Notes  to  section  235. 

Thi9  section  is  taken  from  section  1374  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  which  was  substantially  the  same  as  section 
35,  chapter  344,  Laws  1857.  It  also  includes  section  1377  of  the  Con- 
solidation Act,  which  was  Laws  1857,  chapter  344,  section  39. 

The  reference  to  section  216  in  this  section  is  an  error.  Section  216 
provides  for  "  Deposition  to  take  testimony  conditionally."  The  section 
intended  is  section  231. 

§  236.  Talesmen. —  If  a  sufficient  number  of  competent 
and  indifferent  jurors  do  not  attend,  the  court  must  direct 
to  be  summoned  from  the  vicinity,  sufficient  to  complete  the 
jury,  by  a  marshal  or  a  person  deputed  for  that  purpose. 

Note  to  section  236. 

This  section  is  the  same  as  section  1375  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  which  is  the  same  as  section  37,  chapter  344, 
Laws  1857.  It  also  includes  section  1377  of  the  Consolidation  Act, 
which  was  Laws  1857,  chapter  344,  section  39. 

§  237.  Ballots  of  jurors  summoned  but  not  drawn. —  The 
ballots  containing  the  names  of  the  jurors  summoned  and 
not  drawn,  must  be  returned  by  the  clerk  to  the  undrawn 
jury  box,  to  be  drawn  as  in  the  first  instance.  The  ballots 
containing  the  names  of  the  jurors  who  served,  must  be 
placed  in  a  box  to  be  called  the  drawn  jury  box,  until  all  the 
other  names  have  been  drawn  therefrom,  and,  as  often  as 
that  happens,  the  whole  number  must  be  returned  to  the 
undrawn  jury  box,  as  in  the  first  instance. 

Note  to  section   237. 

This  section  is  the  same  as  section  1376  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  which  is  the  same  as  section  38,  chapter  344, 


§§238,239.  Trial;   Trial  Juboks.  321 

Laws    1857.     It   also   includes    section    1377    of   the   Consolidation   Act, 
which  was  Laws  1857,  chapter  344,  section  39. 

§  238.  Adjournments  after  return  of  jury. —  No  adjourn- 
ments can  be  granted  after  the  return  of  the  jury  unless  the 
party  requiring-  the  same  in  addition  to  the  other  conditions 
imposed  upon  him,  deposit  with  the  clerk  the  sum  of  four 
dollars  and  fifty  cents  or  nine  dollars  as  the  case  may  be,  but 
no  jury  fee  or  sum  for  summoning  of  jurors  may  be  included 
as  part  of  the  costs  in  the  judgment,  other  than  the  sum 
originally  paid. 

Notes  to  section  238. 

This  section  is  substantially  section  1378  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  which  was  Laws  1857,  chapter  344,  section  40. 
It  also  includes  section  1377  of  the  Consolidation  Act,  which  was  Laws 
1857,  chapter  344,  section  39. 

The  end  of  the  section  beginning  with  the  words  "  but  no  jury  fee," 
etc.,  is  new,  and  means  that  only  one  fee  for  summoning  jurors  can  be 
taxed,  and  that  the  fee  paid  for  summoning  another  jury  upon  an 
adjournment  cannot  be  taxed. 

§239.  Verdict;  requisites — Except  as  otherwise  provided 
in  this  act,  the  verdict  of  the  jury  must  be  general  for  the 
plaintiff  for  a  specific  sum,  or  for  the  defendant,  or  where 
there  is  a  counterclaim  or  set-off  proved  for  the  defendant 
in  a  specified  sum,  but  where  there  are  several  plaintiffs  or 
defendants,  the  verdict  may  be  for  or  against  one  or  more 
of  them,  within  the  limitations  and  provisions  of  this  act, 
and  the  judgment  must  be  entered  thereon  immediately 
after  the  rendering  of  the  verdict. 

Notes  to  section  239. 

This  section  is  taken  from  section  1380  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  which  was  the  same  as  section  42,  chapter  344, 
Laws   1857. 

]'>y  section  1,  subdivisions  12  and  19,  this  court  has  power  to  direct 
or  set  aside  the  verdict  of  a  jury  and  to  grant  a  new  trial,  etc. 

Absence  of  plaintiff. —  Nothing  less  than  express  assent  can  warrant 
taking  a  verdict  in  plaintiff's  absence.  People  v.  Mayor's  Court  of 
Albany,  1  Wend.  36. 

Altering  verdict. —  The  verdict  is  not  unalterable  when  entered  in 
the  clerk's  minutes,  even  where  it  was  brought  in  sealed,  if  the  jury, 

21 


322  Trial  ;  Trial  Jurors.  §  240. 

on  being  polled,  dissent.  Before  they  have  been  dismissed  from  their 
relation  in  the  case  as  jurors,  their  power  remains  to  alter  the  verdict 
so  as  to  conform  it  to  their  real  and  unanimous  intent.  Warner  V. 
Ar.  Y.  Cent.  A*.  R.  Co.,  52  X.  Y.  437. 

Delay  in  rendering  judgment  upon  verdict. —  Where  the  justice  under- 
took to  set  aside  the  verdict  rendered  and  refused  to  enter  judgment, 
but  several  days  afterward  entered  judgment  upon  it, — Held  no  error, 
since  the  requirement  that  judgment  be  entered  immediately  is  directory 
merely.  Hecht  v.  Mothner,  4  Misc.  Rep.  536;  s.  c,  54  N.  Y.  St.  Rep. 
121,  24  N.  Y.  Supp.  826. 

How  judgment  is  entered. —  Merely  entering  the  verdict  in  the  docket, 
and  putting  down  the  items  of  cost,  and  adding  them  up  with  the 
verdict,  is  not  rendering  a  judgment  on  .such  verdict.  Judgment  must 
be  rendered  and  entered  in  some  way  as  a  judicial  act.  Stephens  v. 
Sontee,  51   Barb.  532. 

The  clerk  has  no  power  to  enter  judgment  upon  the  verdict  of  a  jury, 
except  by  direction  of  the  justice.  The  court  must  give  the  judgment. 
4  E.  D.  Smith,  477. 

Joint  contract. —  In  an  action  on  a  joint  contract  the  jury  may  find 
for  one  defendant  who  pleads  infancy,  and  for  plaintiffs  against  the 
others.     Hartness  v.   Thompson,  5  Johns.   160. 

Jurors  dissent. —  A  jury,  when  they  come  to  the  bar,  may  dissent 
from  the  verdict  to  which  they  had  previously  agreed.  No  verdict  is 
of  force  but  a  public  one,  given  in  open  court,  and  till  received  and 
recorded  it  is  no  verdict.  Root  v.  Sherwood,  6  Johns.  68;  Blackley  v. 
Sheldon,  7  Johns.  32. 

Polling  the  jury. —  Either  party  has  an  absolute  right  to  have  the 
jury  polled  on  bringing  in  their  verdict,  whether  it  is  sealed  or  oral, 
unless  he  has  expressly  waived  it.  Laban  v.  Koplin,  4  N.  Y.  547 ;  Fox 
v.  Smith,  3  Cow.  23;  Jackson  v.  Hawkes,  2  Wend.  619'. 

Regularity  of  verdict. —  The  fact  that  the  jury  attempted  to  commu- 
nicate the  verdict  to  the  party  in  whose  favor  it  was,  after  coming  into 
court,  and  before  the  verdict  was  announced, — Held  not  to  be  consid- 
ered as  affecting  the  impartiality,  regularity,  or  purity  of  the  verdict, 
and  it  was  not  sufficient  ground  for  setting  aside  the  verdict.  Fash  v. 
Byrnes,   14  Abb.  Pr.   12. 

Replevin. — As  to  verdict  or  decision  in  actions  in  replevin,  see  §  121, 
and  note  §   1726,  Code  Civ.  Proc,  thereunder. 

Waiver. —  The  rendering  of  a  general  verdict,  and  its  reception  with- 
out objection  by  the  judge  or  the  parties,  is  good,  notwithstanding 
failure  to  find  on  special  questions  directed.  A  party,  by  so  receiving 
it,  waives  objection.     Moss  v.  Priest,  1  Robt.  632;  s.  c,  19  Abb.  Pr.  314. 

§  240.   Conduct  of  trial.—  On  the  trial  of  all  causes  in 
the  municipal  court,  the  mode  of  conducting  the  trial,  the 


§240.  Trial;  Trial  Jurors.  323 

rules  of  evidence,  the  examination  and  the  swearing  of  the 
jury,  shall  be  the  same  as  prevail  in  courts  of  record. 

Notes  to  section  240. 

This  section  is  taken  from  section  1381  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  which  was  the  same  as  Laws  1857,  chapter  344, 
section  44.  It  also  includes  section  1379  of  the  Consolidation  Act, 
which  was  Laws  1S57,  chapter  344,  section  41. 

In  the  contents  of  title  VI,  "  Trial ;  Trial  Jurors,"  this  section  is 
entitled,  "  Swearing  the  jury,"  instead  of  "  Conduct  of  trial." 

The  word  "  causes  "  is  used  instead  of  "  actions  "  or  "  special  pro- 
ceedings," as  used  in  the  Code  of  Civil  Procedure,  and  in  other  parts 
of  this  act. 

For  definition  of  the  word  "  causes,"  see  Bouvier's  Dictionary,  vol.  I, 
p.  427;  Wood  on  Civil  Law,  p.  301,  and  Funk  &  Wagnall's  Standard 
Dictionary  of  the  English  language. 

Account  must  have  been  ordered  to  be  filed,  and  party  precluded  by 
order  from  giving  testimony  for  failing  to  do  so,  to  make  the  objection 
available  to  evidence  on  the  trial.  Rosen  v.  Rosenthal,  22  Misc.  Rep. 
143.     See  §  165. 

Adjournment  of  trial. —  See  §§  193,  194,  195,  and  notes. 

Admissions. —  No  evidence  can  be  received  in  favor  of  a  party  which 
tends  to  contradict  an  admission  made  by  such  party  in  his  pleadings. 
Crosly  v.  Lang,  6  Bosw.  312. 

When  made  at  or  before  the  submission  of  a  cause  it  cannot  sub- 
sequently be  retracted.     Kohler  v.   Wright,   7   Bosw.   318. 

Testimony  given  by  a  party  on  a  former  trial,  during  which  he  was 
examined  as  a  witness  for  the  adverse  party,  and  which  is  directly  con- 
trary to  his  testimony  in  a  second  suit,  may  be  given  in  evidence  as 
an  admission.     Pickard  v.  Collins,  23  Barb.  444. 

A  party  to  an  action  desiring  to  avail  himself  of  an  admission  or  an 
allegation  contained  in  the  pleading  of  his  adversary  must  accept  the 
admission  or  allegation  as  an  entirety.  Shrady  v.  Shrady,  42  App. 
Div.  9. 

Admission  by  member  of  corporation.     Code  Civ.   Proc,    §    839. 

Amendment  of  pleadings,  etc.    See  §  166,  and  notes. 

Argument. —  Although  a  justice  may,  in  his  discretion,  limit  the 
time  of  a  party's  argument  at  the  close  of  the  trial,  it  is  error  to 
deprive  him  of  that  right  altogether.  Cornwell  v.  Dickel,  6  Civ.  Proc. 
Rep.  416. 

Attorneys  and  counselors  not  to  disclose  communications. —  Code 
Civ.  Proc,  §  834.  An  attorney  or  counselor-at-law  shall  not  be  allowed 
to  disclose  a  communication,  made  by  his  client  to  him,  or  his  advice 
given  thereon,  in  the  course  of  his  professional  employment. 


324  Tkial;  Trial  Jubobs.  §  240. 

By  section  836  of  the  Code  of  Civil  Procedure,  certain  exceptions  are 
made  in  this  respect. 

Bill  of  particulars  must  have  been  ordered  filed,  and  party  precluded 
by  order  from  giving  testimony  for  failing  to  do  so,  to  make  objection 
to  evidence  available  on  the  trial.  Rosen  v.  Rosenthal,  11  Misc.  Rep. 
143.     See  §    1(55,  subds.   1   and   0. 

Case  closed. —  After  the  day  of  the  trial  is  passed,  and  the  cause  has 
been  submitted,  and  the  witnesses  have  departed,  this  court  has  no 
power  to  open  a  case  for  further  hearing.  Harden  v.  Woodside,  1  E.  1). 
Smith,  37;  Alburtis  v.  McCready,  2  E.  D.  Smith,  39;  Lawson  v.  Jones, 
12  Week.  Dig.  551;   Schwartz  v.  Wechler,  29  Abb.  N.  C.  332. 

Cause  of  action,  defense,  proof,  recovery. —  Quantum  meruit  is  re- 
coverable, although  complaint  also  alleges  specific  contract,  Sussdorf 
v.  Schmidt,  55  N.  Y.  319. 

Satisfaction  of  judgment,  set  up  by  defendant,  may  be  impeached  by 
plaintiff.     Mandeville  v.  Reynolds,  5  Hun,  338. 

Under  allegation  of  contributory  negligence,  defendant  allowed  i» 
prove  contract.     Brown  v.  Elliott,  4  Daly,  329. 

Special  contract,  performed,  provable  under  general  complaint.  Hig~ 
gins  v.  Neivtown  &  Flushing  R.  R.  Co.,  3  Hun,  till. 

Under  a  general  denial  in  the  answer,  in  an  action  for  conversion, 
defendant  may  give  evidence  explaining  his  failure  to  deliver  —  e.  g., 
that  he  delivered  to  a  third  person,  who,  by  the  course  of  business  be- 
tween the  parties,  was  apparently  authorized  to  receive.  Ontario  Bank 
v.  N.  J.  Steamboat  Co.,  59  N.  Y.  510. 

True  source  of  injury,  admissible  under  general  denial.  fichaus  v. 
Manhattan  (las  Light  Co.,  14  Abb.  Pr.  N.  S.  371. 

So  of  alteration  after  signature.     Boomer  v.  Koon,  6  Hun,  645. 

So  of  fact  that  contract  was  void  against  public  policy  and  morals. 
Russell  v.  Burton,  66  Barb.  .1.39. 

Id.;  failure  to  answer;  motion  to  dismiss. —  Failure  of  defendant  to 
serve  a  verified  answer  when  required  does  not  preclude  him  from 
moving  to  dismiss  the  complaint  as  not  stating  a  cause  of  action,  and 
-lnh  motion  is  to  be  treated  as  a  demurrer.  Morris  v.  Hunken,  40  App. 
Div.   129,  57  N.  Y.  Supp.  712. 

Certified  copies  of  a  paper  on  file  in  the  office  of  the  clerk  shall  be 
;//  ima  facie  evidence  thereof.     §  289.     See  also  latter  part  of  §   15. 

Certificate  of  copies,  etc.,  for  form  of. —  See  Code  Civ.  Proc,  §  957. 
It  must  he  sealed  (see  Code  Civ.  Proc,  S  858),  unless  it  is  in  the  same 
court   (Code  Civ.  Proc,  §  959). 

Charge  of  the  judge  to  the  jury;  additional  requests. — -Refusal  of  a 
trial  justice  to  receive  additional  requests  to  charge,  or  to  have  them 
noted  by  the  stenographer,  held  to  require  a  reversal.  Munster  v. 
Benoliel,  33  Misc.  Rep.  586,  67  N.  Y.  Supp.  1044.  9  X.  Y.  Annot.  Cas. 
190,  revg.  32  Misc.  Rep.  630,  60  X.  Y.  Supp.  493. 


§  240.  Trial  ;  Tkial  Jurors.  325 

Id.;  amount  of  damages. —  A  charge  in  a  negligence  case,  brought  in 
a  city  court  for  $2,000,  the  limit  of  the  court's  jurisdiction,  that  if 
the  jury  found  any  damages,  it  might  be  in  any  amount  between  one 
penny  and  $2,000,  sustained.  Nash  v.  bankers  R.  R.  Co.,  63  App.  Div. 
315,  71  N.  Y.  Supp.  594. 

Id.;  credibility  of  witness. —  A  party  who  puts  a  witness  on  the 
stand  presents  him  as  credible,  and  he  is  not  in  a  position  to  complain 
of  a  charge  that  the  jury  is  not  at  liberty  to  disregard  his  testimony. 
Grossman  v.  Lurman,  57  App.  Div.  393,  68  N.  Y.  Supp.  31 1. 

Id.;  inference. —  It  is  only  where  the  facts  to  be  found  will  justify 
but  a  single  inference,  that  the  court  is  warranted  as  matter  of  law  in 
directing  a  jury  to  draw  such  inference,  if  they  find  the  testimony  true. 
Kellegher  v.  Forty-second  St.,  Manhattanville,  etc.,  Ry.  Co.,  56  App. 
Div.  322,  67  N.  Y.  Supp.  767. 

Id.;  necessity  of  objection. —  Where  a  party  has  taken  no  exceptions 
to  the  charge  and  made  request  to  charge,  he  is  not  in  a  position  to 
insist  upon  a  proposition  which  might  have  been  so  presented  as  con- 
trolling the  disposition  of  the  case  by  the  jury.  Williams  v.  First  Na- 
tional Bank  of  Syracuse,  167  N.  Y.  594,  60  N.  E.  1122,  affg.  45  App. 
Div.  239. 

Id.;  omicsion  to  charge. —  A  justice  has  the  right  to  charge  the  jury, 
although  it  is  usual  to  omit  to  do  so;  and  his  omission  or  refusal  to 
charge,  when  requested,  is  not  error.     Pettit  v.  Ide,  12  Abb.  Pr.  44. 

Id.;  requests  to  charge. —  The  court  is  not  required  to  again  charge 
a  rule  of  law  already  stated,  although  the  request  was  in  slightly  differ- 
ent language.  Wagner  v.  Buffalo  &  Rochester  Transit  Co.,  59  App. 
Div.  419,  69  N.  Y.  Supp.  113. 

Id.;  refusal  to  charge. —  "If  upon  the  whole  case  the  evidence  is 
equally  balanced,  either  upon  the  question  of  the  defendant's  negligence 
or  the  plaintiff's  freedom  from  contributory  negligence,  they  must  find 
a  verdict  in  favor  of  the  defendant,"  where  the  evidence  warrants,  is 
error.  Schaefer  v.  Metropolitan  Street  Ry.  Co.,  34  Misc.  Rep.  554,  69 
N.  Y.  Supp.  980. 

Refusal  to  charge  in  a  negligence  case,  that  if  upon  the  whole  case 
the  evidence  is  equally  balanced,  either  upon  the  question  of  defendant's 
negligence  or  of  plaintiff's  freedom  from  negligence,  defendant  must 
have  the  verdict,  is  error.  Brockman  v.  Metropolitan  Street  Ry.  Co., 
32  Misc.  Rep.  728. 

Id.;  swearing  falsely;  interested  witnesses. —  A  charge  that  "before 
they  can  reject  the  testimony  of  any  witness  in  the  case,  the  jury  must 
be  satisfied  that  the  person  willfully,  knowingly,  and  corruptly  swore 
falsely,"  without  excepting  the  case  of  interested  witnesses,  is  erroneous. 
Biegelson  v.  Kahn,  33  Misc.  Rep.  610,  C7  N.  Y.  Supp.  1112. 

Clerks,  etc.,  to  search  files,  to  certify,  etc. —  Code  Civ.  Proc,  §  961. 

Clergymen,  etc.,  not  to  disclose  confession. —  Code  Civ.  Proc,  §  833. 
A  clergyman,  or  minister  of  any  religion,  shall  not  be  allowed  to  disclose 


326  Trial;  Trial  Jtjrobs.  §240. 

a  confession  made  to  him,  in  his  professional  character,  in  the  course 
of  discipline,  enjoined  by  the  rules  or  practice  of  the  religious  body  to 
which  he  belongs. 

As  to  the  application  of  this  section  and  waiver  thereof,  see  §  836, 
Code  Civ.  Proc. 

Commission;  deposition. —  An  order  suppressing  the  same  must  be 
obtained,  so  it  cannot  be  read  in  evidence.  Hedges  v.  Williams,  33  Hun, 
546;  Denny  v.  Horton,  11  Daly,  358.     And  see  §  212. 

Contempt  of  court. —  Criminal.  See  §§  4  to  8.  Contempts  punishable 
civilly.     See  §  8. 

Continuing  trial. —  By  section  15  the  trial  of  an  action  or  special 
proceeding  may  be  continued  from  day  to  day,  or  from  one  day  to  any 
other  day  or  days  until  the  same  is  finished.  A  special  proceeding  may 
be  continued  before  another  justice,  but  not  an  action. 

Contract;  law  of  place. —  All  matters  bearing  upon  the  execution, 
interpretation,  and  validity  of  contracts,  including  the  capacity  of  the 
parties  to  contract,  are  determined  by  the  law  of  the  place  where  the 
contract  is  made.     Union  Nat.  Bank  v.  Chapman,  169  N.  Y.  538. 

Copies  of  records  and  papers  in  certain  offices;  presumptive  evidence. 
—  Code  Civ.  Proc,  §  933. 

Id.;  records  of  United  States  courts. —  Code  Civ.  Proc,  §  943.  A 
copy  of  the  record,  or  any  other  proceeding,  of  a  court  of  the  United 
States  is  evidence,  when  certified  by  the  clerk  or  officer  in  whose  custody 
it  is  required  by  law  to  be. 

Corporation. —  When  proof  of  corporate  existence  unnecessary.  See 
§  176  of  this  act,  and  §  1776,  Code  Civ.  Proc. 

Id.;   admission  by  member  of  corporation. —  Code  Civ.  Proc,   §   839. 

Counsel  reading  to  the  jury. —  When  counsel  are  permitted,  under 
objection  and  exception,  while  summing  up,  to  read  to  the  jury  an  ab- 
stract from  a  pamphlet  or  newspaper,  or  to  exhibit  a  cartoon,  not  in 
evidence,  it  is  good  ground  for  reversal.  Koelges  v.  Guardian  Life  Ins. 
Co.,  57  N.  Y.  638;  Williams  v.  Brooklyn  Elevated  Co.,  126  N.  Y.  96; 
McKeever  v.  Weyen,  11  Week.  Dig.  258;  People  v.  Fielding,  158  N.  Y. 
547. 

Credibility  of  witness  a  question  for  the  jury. —  Although  the  evi- 
dence of  defendant  and  her  employee  in  an  action  for  negligence  based  in 
part  upon  the  personal  omission  of  such  employee  are  uncontradicted, 
their  credibility  presents  a  question  for  the  jury.  Eastland  v.  Clarke, 
165  N.  Y.  420,  59  N.  E.  202. 

Where  a  witness  is  interested  in  the  issue  on  trial,  his  credibility  is 
a  question  for  the  jury  although  he  is  not  impeached  or  contradicted, 
and  the  court  is  not  warranted  in  directing  a  verdict  upon  his  testi- 
mony alone.  The  same  rule  applies  to  the  testimony  of  two  witnesses, 
both  of  whom  are  equally  interested  and  testifying  to  the  same  facts. 
Saranac  &  Lake  Placid  R.  R.  Co.  v.  Arnold,  167  N.  Y.  368,  60  N.  E. 
647,  revg.  41  App.  Div.  482. 


§  240.  Trial  ;  Trial  Jurors.  327 

The  jury  has  the  right  to  credit  the  testimony  of  plaintiff  as  against 
five  witnesses  produced  by  defendant.  Wheeler  v.  Metropolitan  St.  Ry. 
Co.,  32  Misc.  Rep.  764,  66  N.  Y.  Supp.  477. 

Crime. —  Conviction  of,  not  to  exclude  witness.  See  §  832,  Code  Civ. 
Proc. 

Cross-examination. —  The  court  has  power  to  restrain  an  abuse  of 
the  right  of  cross-examination,  and  to  prevent  an  improper  or  vexatious 
delay  in  the  progress  of  a  trial,  and  it  is  the  duty  of  the  court  to  exer- 
cise that  power,  whenever  the  ends  of  justice  require  it.  Peck  v.  Rich- 
mond, 2  E.  D.  Smith,  380;  Plato  v.  Kelly,  16  Abb.  188. 

In  cross-examining  a  witness  for  the  purpose  of  affecting  his  credit, 
great  latitude  is  usually  allowed  to  counsel.  But  where  the  sole  object 
is  to  impeach  the  witness,  and  the  matters  inquired  about  are  collateral, 
and  not  pertinent  to  the  matter  in  issue,  the  extent  is  entirely  discre- 
tionary with  the  court.  Allen  v.  Bodine,  6  Barb.  383;  La  Beau  v.  Peo- 
ple, 34  N.  Y.  223;  Real  v.  People,  42  N.  Y.  270. 

In  an  action  on  a  contract  for  services  as  valet,  Held,  that  it  was 
reversible  error  to  permit  cross-examination  of  defendant  concerning 
his  relations  with  certain  women.  Mowbray  v.  Gould,  63  App.  Div. 
158,  71  N.  Y.  Supp.  365. 

Default;  judgment  by. —  Verified  complaint  not  having  been  served 
with  the  summons,  plaintiff  cannot  take  judgment  by  default  without 
proving  his  case.  Whitman,  etc.  v.  Hamilton,  27  Misc.  Rep.  198,  57 
X.  Y.  Supp.  760. 

Defendant's  failure  to  appear. —  See  §    147. 

Demand  for  judgment. —  On  trial  of  issue  of  fact,  prayer  for  relief 
not  material.  Hopkins  v.  Lane,  2  Hun,  38;  Caswell  v.  West,  3  Sup.  Ct. 
<T.  &  C.)   383. 

Discontinuance. —  The  plaintiff,  before  the  action  is  finally  submitted, 
has  a  right  to  discontinue  it;  and  it  is  the  duty  of  the  justice  to  give 
judgment,  dismissing  the  action  with  costs,  notwithstanding  the  defend- 
ant had  interposed  a  counterclaim.  Bidwell  v.  Weeks,  2  Hilt.  106; 
Colding  v.  Victor,  26  Misc.  Rep.  728,  56  N.  Y.  Supp.  1044;  Rothenberg 
v.  Filarsky,  30  Misc.  Rep.  610,  62  N.  Y.  Supp.  721;  Heineman  v.  Van 
Stone,  34  Misc.  Rep.  202,  68  N.  Y.  Supp.  803.  An  exception  to  refusal 
is  necessary.  Transcendent  L.  Co.  v.  Steitz,  35  Misc.  Rep.  305,  71  N.  Y. 
Supp.  947. 

Direction  of  verdict. — Where,  if  the  jury  had  rendered  a  verdict  for 
plaintiff  in  a  negligence  case,  the  evidence  suffices  to  sustain  it,  it  is 
error  to  direct  a  verdict  for  defendant.  Tait  v.  Buffalo  Ry.  Co.,  55 
App.  Div.  507,  67  N.  Y.  Supp.  403. 

Defendant  moved  to  dismiss  the  complaint,  at  the  close  of  plaintiff's 
case,  decision  was  reserved,  defendant  called  a  witness,  did  not  renew 
his  motion  or  ask  that  any  question  be  submitted  to  the  jury,  and  the 
court  directed  a  verdict  for  plaintiff,  to  which  defendant  took  no  ex- 
ception.    Held,  that  there  was  no  authority  for  filing  a  decision  and 


328  Trial  ;  Trial  Jurors.  §  240. 

exception  thereto.  Murray  v.  City  of  New  York,  GO  App.  Div.  541,  69 
N.  Y.  Supp.  959. 

Id.;  where  both  parties  move. —  Both  parties  having  requested  the 
direction  of  a  verdict,  the  court  has  the  functions  of  a  jury.  Cypress 
v.  Haulenbeek  Roasting  &  Milling  Co.,  34  Misc.  Rep.  81G,  69  N.  Y.  Supp. 
<i50. 

Disputed  question  of  fact  for  the  jury. —  Whenever  there  is  a  dis- 
puted question  of  fact  the  case  must  go  to  the  jury,  though  it  is  under- 
stood that  a  verdict  for  plaintiff  will  not  be  permitted  to  stand.  Mar- 
shall v.  City  of  Buffalo,  63  App.  Div.  603,  71  N.  Y.  Supp.  719;  McCon- 
nell  v.  N.  Y.  Cent.,  etc.,  R.  R.  Co.,  63  App.  Div.  545,  71  N.  Y.  Supp. 
616.  It  may  be  taken  from  the  jury  if  the  fact  is  either  uncontradicted 
or  the  contradiction  is  illusory,  or  where  the  answering  evidence  is  a 
scintilla  merely.  Lawrence  v.  Wilson,  64  App.  Div.  562,  72  N.  Y.  Supp. 
289. 

Docket. —  By  section  285,  the  docket-books  of  this  court,  or  a  tran- 
script thereof,  certified  by  the  clerk  or  his  successor  in  office,  with  the 
seal  of  the  court  impressed  thereon,  are  evidence  to  prove  facts  as 
stated  therein. 

Documentary  evidence  as  a  substitute  for  oral  evidence. —  Art.  1, 
§§  921  to  931,  Code  Civ.  Proc. 

Estoppel  of  a  former  judgment  extends  to  every  material  matter 
within  the  issues  which  was  expressly  litigated  and  determined  and  also 
to  those  matters  which,  although  not  expressly  determined,  are  compre- 
hended and  involved  in  the  thing  expressly  stated  and  decided,  whether 
they  were  or  were  not  actually  litigated  or  considered.  Malone  v.  Weil, 
67  App.  Div.   169. 

Evidence;  objections  to. —  The  grounds  of  objection  must  be  stated. 
Pearson  v.  Fiske,  2  Hilt.  146;  Fountain  v.  Pettee,  38  N.  Y.  184;  Stoats 
v.  Hudson  River  R.  R.  Co.,  22  How.  Pr.  463;  McCarty  v.  Edwards,  24 
How.  Pr.  236,  20  Johns.  357,  5  Barb.  398,  8  N.  Y.  442,  28  Barb.  462,  2 
Abb.  Pr.  271,  note;  Mallory  v.  Perkins,  9  Bosw.  572;  Button  v.  Mc- 
Cauley,  38  Barb.  413. 

Id.;  order  of. —  It  is  a  general  rule  that  the  time,  manner,  and  order 
of  receiving  evidence  is  a  matter  of  discretion  with  the  judge.  Caldwell 
v.  New  Jersey  Steamboat  Co.,  47  N.  Y.  282;  Bedell  v.  Powell,  13  Barb. 
183 ;  Seeley  v.  Chittenden,  4  How.  265. 

Id.;  party  may  be  rebutted. —  Code  Civ.  Proc,  §  838.  The  testimony 
of  a  party  taken  at  the  instance  of  the  adverse  party,  orally  or  by 
deposition,  may  be  rebutted  by  other  evidence. 

Id.;  rebutting  is  such  as  contradicts,  modifies,  explains,  or  varies 
the  evidence  of  the  other  party.  Romertze  v.  East  River  Bank,  2 
Sweeny,  82;  s.  c,  49  N.  Y.  577. 

Exhibits. —  A  justice  has  no  power,  upon  the  trial  of  an  action  for 
breach  of  warranty  of  a  chattel,  to  compel  a  party,  or  witness,  to  pro- 
duce it  in  court  for  inspection.     Hunter  v.  Allen,  35  Barb.  42. 


§  240.  Trial  ;  Trial  Jurors.  329 

Expiration  of  judge's  term  of  office. —  A  justice  cannot  finish,  after 
the  end  of  his  term  of  office,  the  trial  of  a  case  commenced  before  him, 
before  the  expiration  thereof.  In  re  Rodding,  14  Civ.  Proc.  Rep.  48. 
See  also  §  16. 

Foreign  corporation;  book  of. —  When  evidence.  See  Code  Civ.  Proc, 
§  929,  and  when  a  copy  thereof  is  evidence,  and  how  the  copy  is  to  be 
verified.     See  Code  Civ.  Proc,   §§  930,  931. 

Foreign  State,  territory,  or  country. —  The  unwritten  or  common  law 
of  another  State,  or  of  a  territory,  or  of  a  foreign  country,  may  be 
proved  as  a  fact,  by  oral  evidence.     §  942,  Code  Civ.  Proc. 

Former  trial. —  When  testimony  taken  on,  is  admissible.  See  Code 
Civ.  Proc,  §  830;  Malcolm  v.  Weil,  67  App.  Div.  169. 

Husband  or  wife. —  When  competent  and  incompetent  witnesses.  See 
§  831,  Code  Civ.  Proc 

Immaterial  variance  in  pleading  to  be  disregarded. —  See  §  171;  see 
also  §  2943,  Code  Civ.  Proc. 

Improper  statement  made  to  the  jury. — If  the  trial  court  seeks  to  cor- 
rect improper  statements  made  in  the  presenceof  the  jury,  the  correction 
should  be  as  broad  as  the  error  and  cover  substantially  the  same  ground; 
and  it  does  not  cure  the  error  unless  it  is  sufficiently  extensive,  clear, 
and  specific  to  repel  the  presumption  of  injury.  People  v.  Fielding,  158 
N.  Y.  542,  revg.  s.  c,  36  App.  Div.  401. 

Inspection  of  premises. —  The  trial  judge,  upon  the  trial  of  an  action 
of  trespass  upon  land  in  which  the  issue  is  the  ownership  as  between 
plaintiff  and  defendants  of  the  disputed  premises,  where  the  descriptions 
in  the  conveyances  are  not  clear  and  the  testimony  makes  the  identity 
of  the  monuments  uncertain,  may,  at  the  request  of  the  respective  par- 
ties and  their  counsel,  and  accompanied  by  them,  make  a  personal 
examination  of  the  premises.  Weiant  v.  Rockland  Lake  Trap-Rock  Co., 
61  App.  Div.  383,  70  N.  Y.  Supp.  713. 

Issues. —  Where  parties  consent  to  litigate  a  claim  before  the  justice 
of  which  he  would  have  jurisdiction,  no  objection  can  be  raised  to  his 
judgment  on  the  ground  that  the  issues  were  not  within  the  pleadings. 
Conyngham  v.  Shiel,  20  Misc.  Rep.  590. 

Jurisdiction. —  The  fact  that  jurisdiction  over  the  defendant  does  not 
appear  is  not  available  if  not  taken  at  the  trial.  Hill  v.  Moebus,  31 
Misc.  Rep.  134,  63  N.  Y.  Supp.  1022.     See  §  248,  subd.  3. 

Jurors  and  juries;  challenge,  grounds  of. —  See  Ay  res  v.  Hammonds- 
port,  13  Civ.  Proc  Rep.  236;  Hathaway  v.  Halimer,  25  Barb.  201;  Peo- 
ple v.  Horton,  13  Wend.  9 ;  M alloy  v.  Pelham,  4  N.  Y.  St.  Rep.  828. 

Id.;  Id.;  peremptory  challenge;  number  of. —  By  section  1176,  Code 
of  Civil  Procedure,  upon  the  trial  of  an  issue  of  fact,  joined  in  a  civil 
action,  in  a  court  of  record,  each  party  may  peremptorily  challenge- 
not  more  than  six,  and  in  a  court  not  of  record,  each  may  peremptorily 
challenge  not  more  than  three  of  the  persons  drawn  as  jurors  for  the 
trial. 


330  Trial  ;  Trial  Jurors.  §  240. 

By  section  1090,  Code  of  Civil  Procedure,  the  right  of  challenge  to  a 
particular  juror  at  the  trial  is  not  impaired  by  the  fact  that  the  com- 
missioner of  jurors  must  alone  decide  upon  the  qualifications  and  exemp- 
tions of  jurors,  as  provided  in  chapter  X,  title  IV,  article  I,  of  the  Code 
of  Civil  Procedure. 

Id.;  Id.;  trial  of. —  Exceptions  to  and  review  of  the  determination  of 
the  court  in  reference  thereto. —  See  Code  Civ.  Proc,  §  1180.  See 
Mechanics  &  F.  Bank  v.  Smith,  19  Johns.  115;  Smith  v.  Floyd,  18  Barb. 
522. 

Id.;  Id.;  waiver  of. — See  Bennett  v.  Matthews,  40  How.  428;  Hayes 
v.  Thompson,  15  Abb.  N.  S.  220;  Salisbury  v.  McCloskey,  26  Hun,  262. 

Id.;  examination  and  swearing  of  the  jury. —  See  notes  to  §  233, 
"  Qualification,  disqualification,  and  exemption  of  jurors." 

Id.;  instructions  to  JTiry. —  On  recovery  of  plaintiff  for  conversion  of 
personal  property,  it  is  proper  for  the  court  to  direct  the  jury  to  award 
interest  on  the  amount  recovered  from  the  date  of  the  conversion.  Ein- 
stein v.  Dunn,  61  App.  Div.  195,  70  N.  Y.  Supp.  520. 

Judicial  notice.—  What  is.  See  Hunter  v.  N.  Y.,  O.  &  W.  R.  R.  Co., 
27  X.  Y.  St.  Rep.  729.  where  the  cases  on  this  subject  are  collated. 

Id.;  justice  has  power  to  order. —  By  section  232,  a  justice  has  power, 
within  eight  days  (now  fourteen  days)  after  the  conclusion  of  a  trial 
before  him,  to  direct  a  trial  by  jury.  See  also  Zeimer  v.  Stearns,  14 
Misc.  Rep.  7.  The  order  is  to  set  the  case  for  trial  within  eight  days. 
§  232. 

Id.;  marshal  in  charge  of. —  The  jury  must  always  be  put  in  charge 
of  a  constable  (marshal)  sworn  to  attend  them,  unless  they  find  a 
verdict  without  leaving  their  seats.  And  this,  whether  the  jury  re- 
tire from  the  court,  or  the  court  leaves  them  alone  in  the  courtroom. 
Douglass  v.  Blockman,  14  Barb.  381. 

Id.;  oath  to  marshal. —  You  swear,  in  the  presence  of  Almighty  God, 
that  you  will,  to  the  utmost  of  your  ability  keep  the  persons  sworn  as 
jurors  in  this  trial,  together  in  some  private  and  convenient  place, 
without  any  meat  or  drink,  except  such  as  shall  be  ordered  by  me; 
that  you  will  not  suffer  any  communication,  orally  or  otherwise,  to  be 
made  to  them;  that  you  will  not  communicate  to  them  yourself,  orally 
or  otherwise,  unless  by  my  order,  or  to  ask  them  whether  they  have 
agreed  on  their  verdict,  until  they  shall  be  discharged,  and  that  you 
will  not,  before  they  render  their  verdict,  communicate  to  any  person 
the  state  of  their  deliberations,  or  the  verdict  they  have  agreed  on.  So 
help  you  God.  3  Rev.  Stat.  (6th  ed.),  §  101,  p.  415;  Hirsh  on  Juries, 
§  838,  p.  241,  and  p.  320. 

Id.;  oath  to. —  You,  and  each  of  you,  do  swear,  in  the  presence  of 
Almighty  God,  that  you  will  well  and  truly  try  the  matter  in  difference 

between  ,   plaintiff,   and  ,   defendant,   and   a   true  verdict 

will  give  according  to  evidence.     So  help  you  God.     Hirsh  on  Juries. 


§240.  Trial;  Trial  Jurors.  331 

Id. ;  not  sworn. —  The  defendant  moved  to  set  aside  the  verdict  for 
irregularity  on  the  ground  that  one  of  the  jurors  upon  the  panel  had 
not  been  sworn.  Held,  that  such  an  omission,  unaccompanied  by  in- 
jury or  prejudice,  was  not  a  ground  for  setting  aside  a  verdict.  Har- 
denburgh  v.  Crary,  15  How.  Pr.  307. 

If  a  trial  proceeds,  and  a  verdict  is  rendered  without  a  jury  being 
sworn,  such  a  verdict  is  not  irregular  and  void,  when  neither  party 
asked  that  the  oaths  should  be  administered.  Jenkins  v.  City  of  Hud- 
son, 2  How.  N.  S.  244,  8  Civ.  Proc.  Rep.  76,  16  Abb.  N.  C.  137. 

Id.;  objections;  when  to  be  made. —  An  irregularity  in  summoning  the 
jury  is  good  ground  for  challenge  to  the  array,  and  must  be  made  in 
the  first  instance.  If  no  objection  be  made  until  after  the  jury  are 
impaneled  and  sworn,  it  is  too  late.  Mayor  of  New  York  v.  Mason,  1 
Abb.  Pr.  352. 

After  the  jury  were  sworn,  but  before  the  trial  had  commenced,  the 
justice  ordered  some  of  the  jurors  to  be  withdrawn,  and  others  sub- 
stituted. His  right  to  do  so  was  considered  doubtful,  but  it  was  held 
that  the  defendant,  by  not  objecting  at  the  time,  waived  his  right  to 
object.     Cook  v.  Ritter,  4  E.  D.  Smith,  253. 

Id.;  taking  out  papers. —  The  judge  has  discretionary  power  to  allow 
them  to  take  with  them  any  papers  read  in  evidence,  when  they  retire 
to  deliberate  on  their  verdict.  Hoicland  v.  Willetts,  9  N.  Y.  170; 
Porter  v.  Mount,  45  Barb.  422:  Schnappner  v.  Second  Ave.  R.  R.  Co., 
55  Barb.  497. 

Verdict  set  aside  for  delivery  to  jurors  of  a  paper  touching  the  issue. 
O'Brien  v.  Merchants'  Fire  Ins.  Co.,  38  N.  Y.  Super.    (J.  &    S.)    482. 

It  is  not  proper  to  allow  the  jury  to  take  minutes  of  testimony  kept 
by  the  counsel  on  one  side.    Durfee  v.  Eveland,  8  Barb.  46. 

Id.;  withdrawing. —  A  party  surprised  by  evidence  should  ask  to 
withdraw  a  juror.     Messenger  v.  Fourth  Nat.  Bank,  48  How.  Pr.  542. 

Material  variances  between  pleading  and  proof,  how  provided  for. 
See  §  172. 

Mistakes,  omissions,  defects,  and  irregularities;  and  general  regula- 
tions respecting  bonds  and  undertakings. —  Sections  728,  729,  730,  and 
810  to  816.  inclusive,  of  the  Code  of  Civil  Procedure,  apply  to  this 
court  by  subdivision  6  of  section  3347  of  said  Code.  See  also  §  20 
of  this  act,  making  all  sections  of  the  Code  applicable  when  they  do 
not  conflict  with  the  provisions  of  this  act. 

By  section  70  of  this  act.  sections  106  to  110  and  sections  127  and 
128.  relating  to  undertakings,  sureties,  and  justification,  are  made 
applicable. 

Motion  to  dismiss  the  complaint;  cause  of  action;  unverified  answer. 
—  Failure  of  defendant  to  serve  a  verified  answer,  when  required,  does 
not  preclude  him  from  moving  to  dismiss  the  complaint,  as  not  stating 
a  cause  of  action,  and  such  motion  is  to  be  treated  as  a  demurrer. 
Morris  v.  Hunken,  40  App.  Div.  129,  57  N.  Y.  Supp.  712. 


332  Tiual;   Trial  Jurors.  §240. 

Id.;  at  close  of  case. —  Failure  to  move  to  dismiss  at  the  close  of  the 
case,  or  ask  for  a  direction  of  a  verdict,  or  object  to  the  submission  of 
the  case  to  the  jury,  is  a  concession  that  there  is  evidence  tending  to 
prove  the  facts  alleged,  and  precludes  the  party  from  claiming  on 
appeal  that  the  verdict  is  without  evidence.  Sullivan  v.  Brooks  et  al., 
10  Misc.  Rep.  368. 

Omission  to  move  for  a  dismissal  at  the  close  of  the  evidence,  or  for 
the  direction  of  a  verdict,  is  an  admission  that  there  is  a  question 
of  fact  for  the  jury.  Brown  v.  Levi,  34  Misc.  Rep.  812,  68  N.  Y.  Supp. 
941;  Kafka  v.  Levenson,  18  Misc.  Rep.  202;  Hendy  v.  Eagle,  25  Misc. 
Rep.  472;  Hopkins  v.  Clark,  158  N.  Y.  299. 

Id.;  during  the  progress  of  the  direct  examination  of  a  witness, 
—  Held    properly  denied.     Winfield  v.  Potter,  24  How.   Pr.  446. 

Exception  to  refusal  to  dismiss  complaint. — An  exception  to  a  refusal 
to  dismiss  the  complaint  at  the  close  of  the  plaintiff's  case  is  not 
available  where  the  motion  is  not  renewed  before  the  final  submission 
of  the  case  to  the  jury.     Scott  v.   Yeandle,  20  Misc.   Rep.   89. 

Id.;  grounds  for,  must  be  assigned. —  The  motion  must  assign  grounds 
upon  which  it  is  based,  it  must  point  out  the  specific  defect  in  the 
proofs.  Binsse  v.  Wood,  37  N.  Y.  526;  Kafka  v.  Levensohn,  18  Misc. 
Rep.  202,  205;  s.  c,  41  N.  Y.  Supp.  368,  370;  The  City  of  Buffalo  v. 
AT.  Y.,  etc.,  R.  R.  Co.,  152  N.  Y.  276,  283. 

Id.;  on  opening  of  the  case. —  On  the  dismissal  of  the  complaint  on 
the  opening  of  the  case  it  must  be  assumed  that  facts  set  out  in  the 
complaint  and  stated  by  the  counsel  are  true.  Yapel  v.  2V.  Y.,  On- 
tario, etc.,  Ry.  Co.,  57  App.  Div.  265.  68  N.  Y.  Supp.  292. 

Id.;  renewal  of,  at  close  of  entire  case. —  The  motion  to  dismiss  com- 
plaint, made  at  the  close  of  plaintiff's  case,  must  be  renewed  at  the 
close  of  the  entire  case,  and  a  failure  to  do  so  is  a  concession  that 
the  case  was  properly  one  for  the  jury.  Barrett  v.  Third  Ave.  R.  R. 
Co.,  45  N.  Y.  628;  Peake  v.  Bell,  7  Hun,  454;  Clement  v.  Congress 
Spring  Co.,  91  Hun,  637;  Steinau  v.  Scherer,  15  App.  Div.  5,  7,  8; 
Griffith  v.  Staten  Island  R.  T.  Co.,  80  Hun,  141,  142;  Stewart  v.  Fidelity 
L.  Assn.,  19  Misc.  Rep.  49,  51;  Schicinger  v.  Raymond,  105  N.  Y.  648; 
O'Connell  v.  Samuel,  81  Hun,  357;  Scott  v.  Yeandle,  20  Misc.  Rep.  89. 

By  a  renewal  of  the  motion  to  dismiss  at  the  close  of  the  whole  case, 
defendant  has  the  right  to  a  ruling  whether  there  is  at  that  time 
evidence  to  go  to  the  jury.  Apati  v.  Delaware,  Lackawanna,  etc.,  R,  /?. 
Co.,  64  App.  Div.  515,  72  N.  Y.  Supp.  322. 

Id.;  waiver. —  Where  a  motion  to  dismiss  the  complaint  for  insuf- 
ficiency of  the  evidence  is  denied,  and  the  case  submitted  without  ob- 
jection from  the  plaintiff,  such  acquiescence  on  his  part  is  equivalent 
to  a  consent  that  the  cause  be  determined  on  the  merits,  and  operates 
as  a  waiver.  Allen  v.  The  Church  of  the  Beloved  Disciple,  16  Misc. 
Rep.  584. 


§  240.  Trial  ;  Trial  Jurors.  333 

Motion  to  strike  out. —  When  evidence  tending  to  prove  a  material 
fact  in  issue  is  received  under  objection  and  requires  proof  of  other 
facts  to  make  it  complete  which  have  not  been  supplied,  its  presence 
in  the  record  is  no  ground  for  reversal  in  the  absence  of  a  motion  sub- 
sequently made  to  strike  it  out.  Hamel  v.  Brooklyn  Heights  It.  It.  Co., 
59  App.  Div.  135,  69  X.  Y.  Supp.   166. 

No  exception  was  taken  to  a  ruling  allowing  a  question  objected  to, 
but  an  exception  was  taken  to  a  ruling  denying  a  motion  to  strike  out 
the  testimony  adduced.  Held,  that  the  refusal  of  the  court  to  strike 
out  was  not  error,  but  the  remedy  was  to  ask  an  instruction  to  the 
jury  to  disregard  the  evidence.  Smith  v.  Nassau  Electric  R.  R.  Co., 
57  App.  Div.   152,  67  X.  Y.  Supp.    1044. 

When  incompetent  evidence  has  been  received  without  objection,  the 
court  may,  in  its  discretion,  deny  a  motion  to  strike  out  such  evi- 
dence, and  the  remedy  of  the  party  against  whom  the  incompetent 
evidence  is  received  is  to  request  the  court  to  instruct  the  jury  not 
to  consider  it,  which  is  his  only  recourse.  Meislahn  v.  Irving  Nat. 
Bank,  62  App.  Div.  231,  70  X.  Y.  Supp.  988. 

Negotiable  paper;  proof  of  lost. —  Code  Civ.  Proa,  §  1917.  See  also 
notes  to  §  1,  subd.  1.  See  Desmond  v.  Rice,  1  Hilt.  330;  Frank  v. 
WesseU,  04  X.  Y.  155. 

This  provision  of  the  Code  does  not  apply  where  the  note  was  not 
lost,  but  was  destroyed  by  fire.  In  that  event  the  plaintiff  can  recover 
without  giving  a  bond.  Scott  v.  Meeker,  20  Hun,  161 ;  Eoxie  v.  Ken- 
nedy, 10  X.  Y.  St.  Rep.  786;  Dessart  v.  Leggett,  16  X.  Y.  St.  Rep. 
582,  affg.  5  Duer,   156. 

A  tender  of  a  bond  is  sufficient  if  made  upon  trial  before  verdict. 
Brookman  v.  Metcalf,  4  Robt.  568. 

Unless  the  lost  note  was  negotiable,  which  is  not  to  be  presumed,  a 
bond  is  not  necessary.  Wright  v.  Wright,  54  X.  Y.  437,  affg.  59  Barb. 
505. 

Ncnjoinder. —  A  defendant  not  pleading  or  giving  notice  of  the  non- 
joinder of  a  party  cannot  raise  that  objection  on  the  trial.  Abbe  v. 
Clark,  31  Barb.  238:  Scrantom  v.  Farmers,  etc.,  Bank  of  Rochester,  24 
X.  Y.  424;  Pachin  v.  Peck,  38  X.  Y.  39. 

Notary  public's  certificate  evidence;  affidavit  against  it. —  Code  Civ. 
Proa,  §  923. 

In  case  of  death,  or  insanity,  absence,  or  removal  of  a  notary  public, 
his  original  protest  is  proof  of  demand,  also  any  note  or  memoranda, 
or  his  official  register  of  acts.     Code  Civ.  Proa,  §  924. 

For  proof  of  presentment,  etc.,  of  foreign  bill,  see  Code  Civ.  Proa, 
§   025. 

Notice  of  motion  to  set  aside  verdict. —  The  statutory  provision  re- 
quiring a   five   days'  notice  of  motion   to   set  aside   a  verdict   may  be 


334  Trial;  Trial  Jurors.  §240. 

waived.  O'Gorman  v.  Teets,  20  Misc.  Rep.  359.  See  "  Grounds  of  mo- 
tion to  set  aside  verdict,"  etc.,  §  254. 

Oath  or  affirmation. —  As  to  administration  of  an  oath  or  affirmation 
and  general  mode  of  swearing,  see  Code  Civ.  Proa,  §§  842  to  851. 

Objections  and  exceptions. —  Where  the  first  of  a  series  of  similar 
questions  is  objected  to  and  exception  taken  to  overruling  the  objection, 
and  a  motion  made  to  strike  out  the  answer,  and  exception  taken 
to  its  denial,  the  objection,  motion,  and  exceptions  need  not  be  taken 
to  each  question  and  answer  in  succession,  in  order  to  have  the  ex- 
ceptions available.  Wilson  v.  Nassau  Electric  R.  R.  Co.,  56  App.  Div. 
570,  67  N.  Y.  Supp.  486. 

An  objection  that  the  evidence  offered  is  incompetent  raises  every 
ground  of  incompetency  and  is  available  on  appeal  as  to  every  ground 
which  could  not  have  been  obviated  at  the  trial,  including  that  it  was 
not  part  of  the  res  gestce.  Taylor  v.  Central,  etc.,  R.  R.  Co.,  63  App. 
Div.  586,  71  N.  Y.  Supp.  884. 

Official  certificates,  evidence. —  Code  Civ.  Proc.,  §  921. 

Order  of  arrest. —  \V  here  an  order  of  arrest  has  been  granted,  and  is 
not  vacated,  plaintiff  need  only  prove  his  money  demand,  and  he  is 
then  entitled  to  judgment  subjecting  defendant  to  execution  against  his 
person.  Stern  v.  Moss,  67  How.  Pr.  199;  s.  c,  12  Daly,  516;  Johnson 
v.  Florence,  32  How.  Pr.  230. 

Ordinances,  etc.,  of  cities,  villages,  etc.,  may  be  read  in  evidence. — 
Code  Civ.  Proc,   §  941. 

Party  when  he  can  and  cannot  be  examined. —  See  Code  Civ.  Proc, 
§  829. 

Physicians  not  to  disclose  professional  information. —  Code  Civ.  Proc, 
§  834.  A  person,  duly  authorized  to  practice  physic  or  surgery,  shall 
not  be  allowed  to  disclose  any  information  which  he  acquired  in  at- 
tending a  patient,  in  a  professional  capacity,  and  which  was  necessary 
to  enable  him  to  act  in  that  capacity. 

By  section  836  of  the  Code  of  Civil  Procedure,  certain  exceptions 
are  made  in  this  respect. 

Plaintiff;  failure  to  appear  and  dismissal  of  action. —  See  §§  248  and 
249. 

Pleading;  objections  to. —  There  are  but  two  objections  that  can  be 
taken  to  a  pleading  on  the  trial ;  one  that  the  court  has  no  jurisdiction 
of  the  action,  and  the  other,  that  the  complaint  does  not  state  facts 
sufficient  to  constitute  a  cause  of  action.  Winterson  v.  Eighth  Ave. 
R.  R.  Co.,  2  Hilt.  389;  Luddington  v.  Taft,  10  Barb.  447. 

Either  of  these  objections  may  be  raised  for  the  first  time  upon  the 
trial,  and  will  not  be  waived  by  an  omission  to  demur.  Coffin  v.  Rey- 
nolds, 37  N.  Y.  640;  §  499  of  the  Code  Civ.  Proc;  De  Bussiere  v. 
Holladay,  4  Abb.  N.  C.  111. 


§240.  Tkial;  Trial  Jurors.  335 

The  practice  of  taking  objections  to  a  pleading  on  the  trial  is  not 
favored  by  the  courts.  Smith  v.  Countryman,  30  N.  Y.  G55;  Mayor  v. 
Fiegel,  34  How.  434. 

It  has  been  held  to  be  wholly  within  the  discretion  of  the  judge 
whether  he  will  or  will  not  allow  the  pleadings  to  be  read  to  the  jury 
during  the  progress  of  the  trial.      Willis  V.  Forrest,  2  Duer,  310. 

Id. ;  facts  proven. —  The  court  will  conform  the  pleading  to  the  facts 
proven.  This  power  is  given  by  statute  and  is  very  broad  and  ample, 
the  intention  being  not  to  restrict  parties  to  the  formalities  of  plead- 
ings, but  to  try  the  case  broadly  upon  the  merits.  Binges  v.  Evans, 
1    E.  D.  Smith,  192. 

Printed  copies  of  laws  of  another  State,  and  reports  of  cases  may  be 
read  in  evidence.     Code  Civ.  Proc,  §  942. 

Public  officer;  when  certificate  of  public  officer  is  evidence.— Code 
Civ.  Proc,  §  922. 

Request  to  go  to  jury. —  Defendants'  counsel  having  unsuccessfully 
moved  for  dismissal  of  the  complaint,  and  for  a  direction  of  a  verdict, 
excepted  to  the  submission  of  each  and  every  one  of  five  questions  sub- 
mitted to  the  jury,  but  made  no  request  for  the  submission  of  any 
other  questions  or  that  the  case  be  submitted  in  any  other  form, — 
Held,  that  he  was  not  in  a  position  to  raise  the  question  on  appeal 
that  the  findings  amounted  to  a  special  verdict,  and  that  all  the  issues 
were  not,  and  should  have  been,  submitted  to  the  jury.  Genung  v. 
Metropolitan  Life  Ins.  Co.,  60  App.  Div.  424,  69  N.  Y.  Supp.  1041. 

Right  to  begin;  affirmative  of  issue;  to  open  and  close  the  case. —  The 
right  to  begin  is  a  matter  of  great  importance  in  a  jury  trial,  as  the 
party  who  begins  has  the  right  to  make  the  closing  address  to  the 
jury.     Huntington  v.  Conkey,  33  Barb.  218. 

It  is  a  general  rule  that  the  party  upon  whom  the  affirmative  of  the 
issue  lies  is  entitled  to  begin.  Lindsey  v.  European  Petroleum  Co.,  41 
How.  56;  Hoxie  v.  Green,  37  How.  97;  Elvoell  v.  Chamberlain,  31  N.  Y. 
611;  Clafflin  v.  Barre,  28  Hun,  204. 

Where  a  complaint  is  admitted,  and  nothing  remains  to  be  proven 
but  the  interest,  the  defendant  has  the  affirmative  of  the  issue.  Bren- 
nan  v.  Security  Life  Ins.  Co.,  4  Daly,  296;  Hunter  v.  American  Pop- 
ular Life  Ins.  Co.,  4  Hun,  794;  Millerd  v.  Thorn,  56  N.  Y.  402. 

In  all  cases  where  damages  sought  to  be  recovered  in  the  action  are 
unliquidated,  the  plaintiff  has  the  right  to  begin.  Huntington  v. 
Conkey,  33  Barb.  218. 

The  denial  of  this  right  is  ground  for  reversal  on  appeal,  unless  the 
court  can  clearly  see  that  no  injury  or  injustice  resulted  from  the  er- 
roneous decision.  Hoxie  v.  Green,  37  How.  97 ;  Fry  v.  Bennett,  28  N.  Y. 
324;  Murray  v.  N.  Y.  Life  Ins.  Co.,  85  N.  Y.  236. 

Id.;  affirmative  of  issue. —  A  party  holding  the  affirmative  upon  an 
issue  of  fact   has  the  right  to  open  and  close  the  proof  and  reply. 


336  Twial;  Tkial  Jubobs.  §  l;40. 

If  the  plaintiff,  without  giving  any  evidence,  is  entitled  to  recover 
upon  the  pleadings,  the  affirmative  of  the  issue  rests  with  the  defend- 
ant, and  he  is  entitled  to  open  and  close  the  proof  and  to  reply.  Heil- 
bronn  v.  Herzog,  1(55  N.  Y.  98. 

Where  the  complaint  alleges  a  sale  and  delivery  of  goods,  for  the 
price  of  which  the  action  is  brought,  and  the  answer  merely  alleges 
that  the  goods  were  sold  upon  a  term  of  credit,  which  had  not  expired 
at  the  commencement  of  the  action,  the  affirmative  of  the  issue  rests 
with  the  defendant  and  he  is  entitled  to  open  and  close  the  case.  Heil- 
bronn  v.  Herzog.  165  N.  Y.  98,  58  N.  E.  759. 

Id.;  opening  case. —  The  object  of  opening  the  case  is  to  state  briefly 
the  nature  of  the  action,  the  substance  of  the  pleadings,  the  points  in 
issue,  the  facts  and  circumstances  of  the  case,  and  the  substance  of  the 
evidence  to  be  adduced  in  its  support.  Ayrault  v.  Chamberlain,  33 
Barb.  229. 

The  judge  cannot  dismiss  the  complaint  on  the  ground  that  the  coun- 
sel for  plaintiff  has  failed  to  state  a  cause  of  action  in  his  opening. 
Sawyer  v.  Chambers,  43  Barb.  622 ;  s.  c.,  44  Barb.  42 ;  Stewart  v. 
Hamilton,  28  How.  265;  s.  c.,   18  Abb.  298. 

After  the  plaintiff  has  rested,  the  defendant  may  open  his  case  to  the 
jury  by  giving  a  statement  of  his  answer  to  the  plaintitl  s  case,  and  the 
evidence  he  proposes  to  give  to  sustain  it.  Ayrault  v.  Chamberlain,  33 
Barb.  229. 

Id.;  reopening  case. —  After  the  parties  have  rested,  but  before  the 
case  has  been  finally  submitted,  while  the  parties  and  their  witnesses 
are  still  present,  the  admission  of  additional  evidence  is  entirely  in  the 
discretion  of  the  justice.  Harpell  v.  Curtis,  1  E.  D.  Smith,  7S;  Pickert 
v.  Derler,  12  Wend.  153;  Reed  v.  Barber,  3  Code  Rep.  160;  Lambert  v. 
Seely,  2  Hilt.  430;  Hyland  v.  Sherman,  2  E.  D.  Smith,  235;  Williams 
v.  Hays,  20  N.  Y.  58;  Anthony  v.  Smith,  4  Bosw.  503;  Solomon  v. 
Central  Pic,  etc.,  R.  R.  Co.,  1  Sweeny,  298;  Henry  v.  Lowell,  16  Barb. 
268;    Meyer  v.  Goedel,  31  How.  456. 

Seal,  presumptive  evidence  of  consideration. —  Code  Civ.  Proc,  §  840. 
A  seal  upon  an  executory  instrument  hereafter  executed  is  only  pre- 
sumptive evidence  of  a  sufficient  consideration,  which  may  be  rebutted, 
as  if  the  instrument  was  not  sealed. 

Id.-  public  or  corporate,  may  be  stamped,  but  private  seal  not.  Stat- 
utory Construction  Law  (Laws  1892,  chap.  677),  §   13. 

Second  trial. —  Where  a  judgment  has  been  reversed  and  a  new  trial 
ordered,  the  justice  has  power,  on  the  second  trial,  to  direct  that  the 
trial  be  had  by  jury.  New  York  Small  Stock  Co.  v.  Third  Ave.  R.  R. 
Co.,  16  Misc.  Rep.  64. 

Statute  or  resolution  of  the  Legislature;  how  proved.— See  Code 
Civ.  Proc,  §  932. 


§  240.  Trial  ;  Trial  Jurors.  337 

Sunday. —  Trial  in  court  on  Sunday  is  illegal  and  void.  People  ex  rel. 
Donohue  v.  Walton,  35  Misc.  Rep.  320. 

Transcript  of  proceedings,  or  papers  filed  in  this  court  is  evidence,  by 
latter  part  of  section  15  of  this  act.     See  also  §  289. 

Trial. —  After  the  plaintiff  has  made  a  prima  facie  case  and  rested, 
the  defendant  states  his  case  to  the  jury  and  calls  his  witnesses;  and 
after  he  has  rested,  the  plaintiff  may  introduce  evidence  in  denial,  or  by 
way  of  avoidance  of  the  defendant's  evidence;  and  if  the  evidence  of 
plaintiff  in  reply  was  in  avoidance  of  defendant's  evidence,  the  defend- 
ant may  introduce  new  evidence  rebutting  that  given  in  reply. 
Ramertze  v.  East  R.  Haul:,  2  Sweeny,  82;  s.  c,  49  N.  Y.  577;  Ayrault  v. 
Chamberlain,  33  Barb.  229. 

The  complaint  may  be  amended  on  the  trial  so  as  to  include  matters 
proved  upon  the  trial,  where  such  amendment  is  in  furtherance  of  jus- 
tice.    Parsons  v.  Sutton,  60  X.  Y.  92. 

The  judge  has  power  to  adjourn  the  trial  to  enable  defendant  to  pro- 
cure witnesses  to  meet  testimony  of  plaintiff  which  could  not  have  been 
anticipated  from  the  pleading,  if,  in  his  discretion,  he  thinks  an  ad- 
journment should  be  had.     Jourdan  v.  Healy,  46  N.  Y.  St.  Rep.  198. 

Waiver  as  to  confidential  and  privileged  communications  of  attor- 
neys and  counselors,  clergymen,  etc.,  and  physicians  and  surgeons,  how 
to  be  made.     See  §  836,  Code  Civ.  Proc. 

Witness;  adverse. —  Plaintiff,  compelled  to  call  defendant  as  a  wit- 
ness to  prove  his  case,  should  be  allowed  a  large  latitude  in  conducting 
the  examination.     Levin  v.  Spero,  35  Misc.  Rep.  792. 

Id.;  conviction  of  crime  not  to  exclude  witness. —  See  §  832,  Code 
Civ.  Proc. 

Id.;  credibility;  impeaching. —  A  party  having  introduced  a  witness, 
asserts  his  credibility,  and  cannot  impeach  it  by  showing  that  he  had 
previously  sworn  contrary  to  his  present  testimony.  Craft  v.  Brando  ic, 
61  App.  Div.  247,  70  N.  Y.  Supp.  364. 

Id.;  impeaching. —  And  it  is  in  the  discretion  of  the  court  to  inter- 
pose and  protect  a  witness  against  any  inquiries  not  relevant  to  the 
issue,  and  having  no  object  in  view  but  the  impeachment  of  the  witness. 
Great  Western  Turnpike  Co.  v.  Loomis,  32  N.  Y.  127;  Varona  v.  Socar- 
ras,  8  Abb.  302. 

In  the  impeachment  of  witnesses,  it  is  the  general  character  alone 
that  is  in  question,  and  therefore  specific  acts  of  immorality  on  the  part 
of  a  witness  cannot  be  given  in  evidence  to  impair  his  credibility. 
Coming  v.  Coming,  6  N.  Y.  97;  Greaton  v.  Smith,  1  Daly,  380. 

Id.;  limiting  number  of. —  The  court  may  exercise  a  reasonable  dis- 
cretion as  to  the  number  of  witnesses  to  be  examined  on  one  side,  as  to 
what  occurred  at  a  given  time  and  place  between  the  parties,  and  a 
decision  in  that  respect  is  not  the  subject  of  an  exception  which  can  be 

22 


338  Trial;  Trial  Jurors.  §241. 

reviewed.     Anthony  v.   Smith,  4    Bosw.   503;    Spear  v.   Meyers,  0  Barb. 
44r. :  People  v.  Cook,  8  N.  Y.  07,  77. 

Id.;  qualification  of. —  Code  Civ.  Proa,  §  850.  The  court  or  officer 
may  examine  an  infant,  or  a  person  apparently  of  in  ah-  intellect,  pro- 
duced  before  it  or  him  as  a  witness,  to  ascertain  his  capacity  and  the 
extent  of  his  knowledge;  and  may  inquire  oi  a  person  produced  as  a 
witness,  what  peculiar  ceremonies  in  swearing  he  deems  most  obligatory. 

Id.;  recalling  after  ease  is  closed  is  entirely  discretionary.  Sheldon 
v.  Wood,  2  Bosw.  207;  Earpell  v.  Curtis,  \  E.  D.  Smith,  78;  Treadwell 
v.  Stebbins,  6  Bosw.  538;  Lambert  v.  Seely,  2  Hilt.  429;  HeiOenheimer 
v.   Wilson,  31    Barb.  039. 

Id.;  transactions  with  deceased. —  The  maker  of  a  note  is  disqualified 
to  testify  in  his  own  behalf  as  to  personal  transactions  and  communica- 
tions between  himself  and  the  deceased  payee  thereof  under  section  829 
of  the  Code  of  Civil  Procedure,  as  against  one  obtaining  title  to  the 
note  through  such  payee.     Wangner  v.  Qrimm,  1(J9  N.  Y.  421. 

Id.;  when  not  excused  from  testifying.  —  Code  Civ.  Proa,  §  837.  A 
competent  witness  shall  not  be  excused  from  answering  a  relevant 
question  on  the  ground  only  that  the  answer  may  tend  to  establish 
the  fact  that  he  owes  a  debt,  or  is  otherwise  subject  to  a  civil  suit. 
But  this  provision  does  not  require  a  witness  to  give  an  answer  which 
will  tend  to  accuse  himself  of  a  crime  or  misdemeanor,  to  expose  him 
to  a  penalty  or  forfeiture;  nor  does  it  vary  any  other  rule,  respecting 
the  examination  of  a  witness. 

Writing. —  The  rule  that  parol  evidence  is  not  admissible  to  vary  a 
writing  does  not  apply  to  persons  not  parties  to  the  writing.  Williams 
v.  Fisher,  28  N.  Y.  Supp.  739. 

Id.;  disputed. —  Comparison  of  a  disputed  writing,  with  any  writing 
proved  to  the  satisfaction  of  the  court  to  be  genuine,  shall  be  permitted 
to  be  made  by  witnesses  in  all  trials  and  proceedings,  and  such  writings 
and  the  evidence  of  witnesses  respecting  the  same  may  be  submitted  to 
the  court  and  jury  as  evidence  of  the  genuineness,  or  otherwise,  of  the 
writing  in  dispute.  Laws  1SS0,  chap.  30,  §  1,  amended  by  Laws  1888, 
chap.  555,  so  as  not  to  apply  to  any  proceeding  previously  commenced. 

As  to  meaning  of  the  term  "  disputed  writing,"  as  used  in  the  stat- 
ute, see  People  v.  Molmeux,  108  N.  Y.  204.  where  the  history  of  this 
subject   is  collated. 

§  241.  Submission  of  a  controversy  upon  facts  admitted. — 
When  an  action  or  summary  proceeding  has  been  commenced 
according  to  the  provisions  of  this  act,  upon  its  being  reached 
for  trial,  the  parties,  being  of  full  age,  may  agree  upon  a 
statement  of  the  facts  upon  which  the  controversy  depends 
and  may  present  a  written  submission  thereof  to  the  court. 
Such  statement  must  be  accompanied  with  the  affidavit  of 


§§242,243.  Trial;   Trial  Jurors.  330 

one  or  more  of  the  parties  to  the  effect  that  the  controversy 
is  real  and  that  the  submission  is  made  in  good  faith,  for  the 
purpose  of  determining  the  rights  of  the  parties. 


Notes  to  section  241. 

This  section,  together  with  sections  242  and  243,  are  taken  from 
title  II.  article  II,  "  Submission  of  a  Controversy,  upon  Facts  Ad- 
mitted," sections  1279,  1280,  and  1281  of  the  Code  of  Civil  Procedure. 

By  section  243  it  will  be  seen  that  "  an  order  of  arrest,  warrant  of 
attachment,  a  writ  of  replevin,  or  an  execution  against  the  person  can- 
not be  granted  in  such  an  action." 

For  decisions  under  the  foregoing  sections,  see  an  annotated  Code  of 
Civil  Procedure. 

§  242.  Papers  to  be  filed. —  Such  statement,  submission  and 
affidavit  must  be  filed  in  the  office  of  the  clerk  of  the  court 
in  the  district  in  which  the  action  was  commenced.  The 
filing  is  a  presentation  of  the  submission,  and  each  provision 
of  this  act  relating  to  an  action  or  summary  proceeding,  or 
the  costs  therein,  applies  to  the  subsequent  proceedings  ex- 
cept as  otherwise  prescribed  in  the  next  section. 

Note  to  section  242. 

See  notes  to  section  241. 

§  243.  Subsequent  proceedings  regulated. —  An  order  of  ar- 
rest, warrant  of  attachment,  writ  of  replevin  or  execution 
against  the  person,  cannot  be  granted  in  such  an  action.  The 
action  must  be  tried  by  the  court  upon  the  statement  alone 
and  the  statement,  submission,  affidavit  and  the  judgment 
rendered,  and  any  order  or  papers  necessarily  affecting  the 
judgment  constitute  the  judgment  record.  If  the  statement 
of  facts  is  not  sufficient  to  enable  the  court  to  render  judg- 
ment, an  order  must  be  made  dismissing  the  submission  with- 
out costs  to  either  party,  unless  the  court  permit  Jhe  parties, 
or,  in  a  proper  case,  their  representative,  to  file  an  additional 
statement,  which  it  may  do  in  its  discretion,  without  preju- 
dice to  the  original  statement. 

Note  to  section  243. 

See  note  to  §  242. 

Note. —  There  are  no  sections  from  243  to  248. 


34:0  Judgments. 

title  vii. 

Judgment  and  Execution. 
Article    I.  Judgments. 
11.  Executions. 

ARTICLE    I. 

Judgments. 

Section  248.  Nonsuit;   when  authorized. 

249.  Judgment  of  dismissal   on  merits;   when. 

250.  Judgment  when  sum  exceeds  jurisdiction. 

251.  Judgment  where  defendant  liable  to  arrest. 

252.  Court  may  direct  verdict;   when. 

253.  Court  may  open  default. 

254.  Motion  to  set  aside  verdict  or  vacate  or  amend  judgment. 

255.  New  trial;   fraud  or  newly-discovered  evidence. 

256.  Court  may  impose  conditions,  et  cetera. 

Notes  to  title  VII,  article  I. 

There  are  ten  sections  in  this  title  under  article  I,  "  Judgments,'' 
from  sections  248  to  257  both  inclusive.  While  the  above  "  Contents  "' 
only  has  nine,  from  sections  248  to  256,  thus  omitting  to  mention  sec- 
tion 257  in  the  contents,  which  is  a  provision  for  an  appeal  from  an 
order  as  provided  in  sections  253  to  256,  inclusive. 

In  addition  to  the  "  Judgments "  specified  in  tnis  article,  this  act 
contains  the  following  provisions  about  "  Judgments." 

Judgment;  chattel;  requisite  of,  in  action  to  foreclose  lien  on  a. — 
See  §  141. 

Id.;  counterclaim  when  equal  or  unequal. —  See  §§  153  and  154. 

Id.;   default. —  See  §   147,  and  notes. 

Id.;  Docketed,  becomes  a  judgment  of  Supreme  Court.  See  §  261,  and 
notes. 

Id.;   Id. —  Binds  real  property  for  ten  years.     See   §  263,  and  notes. 

Id.;   Id. —  In  another  county.     See  §  269. 

Id.;  Id. —  Effect  of,  against  defendants  jointly  indebted  when  all  are 
not  served.     See   §  267. 

Id.;   executor  or  administrator. —  See  §  156. 

Id.;  fictitious  name. —  Judgment  against  defendant  by  a,  may  be 
amended.  Lien  of.  See  §  1251,  Code  Civ.  Proc,  as  amended  by  Laws 
1902,  chap.  318,  and  §  27  of  this  act,  and  notes. 

Id.;  issues  joined  after  trial. —  See  §  230,  and  notes. 

Id.;  joint  debtors. —  Effect  of,  against  defendants  jointly  indebted 
when  all  are  not  served.     See  §  264,  and  notes. 

Id.;  marshal. —  Against.     See  §  270. 

Mechanic's  lien. —  See  §  1,  subd.  10. 

Id.;  offer  to  allow,  or  compromise. —  See  §  148,  and  notes. 


1 248.  Judgments.  341 

Id.;  plaintiff  to  prove  his  case,  except  on  contract  where  there  is  a 
verified  complaint.     See   §    147,  and  notes. 

Id.;   replevin. —  Final   judgment   in. —  See   §    12:!.  and  notes. 

Id.;   return  of  execution  and  satisfaction. —  See  §  277. 

Id.;  satisfaction  of;   when  presumed. —  See  §  262,  and  notes. 

Id.;   wage-earners. —  In  favor  of.     See  §  274. 

Attorney;  when  judgment  void. —  Where  a  person  not  regularly  ad- 
mitted to  practice  in  the  courts  of  record  of  the  State  of  New  York, 
and  not  a  party  to  an  action,  conducts  it  in  this  court,  the  judgment 
rendered  therein  is  void  as  violative  of  the  Code  of  Civil  Procedure, 
sections  63,  64.     Kaplan  v.  Berman,  37  Misc.  Rep.  502. 

Entry  of,  is  the  final  step  in  the  action,  and  completes  it.  People  v. 
Judge,  13  How.  Pr.  398;  People  v.  Colhorne,  20  How.  Pr.  380;  Wetmore 
v.  Rolseman,  14  Abb.  Pr.  311:  Willey  v.  Shaver,  1  Sup.  Ct.  (T.  &  C.) 
327. 

Interest  on  judgment  is  allowed  from  the  time  it  is  entered.  See 
Code  Civ.  Proc,  §   1211. 

Married  woman. —  Judgment  for,  or  against,  may  be  entered  as  if 
she  were  single.     See  §  1206,  Code  Civ.  Proc. 

Motion  costs  to  be  included  in  the  judgment,  or  offset  against  it. 
Faber  v.  Flauman,  Mil  Misc.  Rep.  (127,  62  V  Y.  Supp.  784. 

Voluntary  nonsuit. —  The  plaintiff  may  elect  to  be  nonsuited  on  his 
own  election,  if  he  fails  in  his  proof  by  reason  of  incompetency  or  in- 
sufficiency of  evidence.     Peters  v.  Diossy,  3  E.  D.  Smith,  116. 

The  plaintiff  must  elect  to  be  nonsuited,  at  the  trial,  before  the  com- 
ing in  of  the  verdict.  If  the  cause  is  submitted  to  the  justice,  and  he 
reserves  his  decision,  the  cause  is  then  sub  judice  on  the  merits,  and  the 
plaintiff  has  no  longer  the  right  to  submit  to  be  nonsuited,  nor  the  jus- 
tice power  to  grant  it.  Peters  v.  Diossy,  3  E.  D.  Smith,  116;  Ehoell  v. 
McQueen,  10  Wend.  521:  Hess  v.  Beekman,  11  Johns.  457:  Bennett  v. 
Hull,  10  Johns.  364;  Clements  v.  Benjamin,  12  Johns.  299;  Hess  V. 
Beekman,  supra. 

A  nonsuit  ordered  aLer  the  cause  has  been  finally  submitted  by  the 
plaintiff,  on  a  trial  on  the  merits,  even  if  ordered  with  the  plaintiff's 
consent,  must  be  regarded  as  a  judgment  for  the  defendant,  and  is  a  bar 
in  any  other  litigation  between  the  parties.  Gillian  v.  Spratt,  8  Abb. 
Pr.  N.  S.  13;   s.  c,  3  Daly,  440. 

§  248.  Nonsuit;  when  authorized. —  Judgment  that  the  ac- 
tion be  dismissed  with  costs,  without  prejudice  to  a  new 
action,  shall  be  rendered  in  the  following  cases: 

Note  to  section  248. 

This  section  is  taken  from  section  1382  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  which  was  Laws  1857,  chap.  344,  §  45. 


$42  Judgments.  §248. 

1.  Where  the  plaintiff  voluntarily  discontinues  the  action 
before  it  is  finally  submitted. 

2.  When  he  fails  to  appear  at  the  time  specified  in  the 
summons  or  upon  adjournment. 

Notes  to  section  248,  subdivision  2. 

Dismissal  of  complaint;  unverified  answer. —  Failure  of  defendant  to 
serve  a  verified  answer  does  not  preclude  him  from  moving  to  dismiss 
the  complaint  as  not  stating  ;i  cause  of  action,  and  such  motion  is  to 
be  treated  as  a  demurrer.  Morris  v.  Hunken,  40  App.  Div.  129,  .",7 
N.  Y.  Supp.  712. 

Failure  to  appear  on  adjourned  day,  and  dismissal  of  the  action 
therefor,  causes  loss  of  jurisdiction  of  defendant,  and  plaintiff  cannot 
thereafter  restore  the  case  and  take  an  inquest.  Abrams  v.  Fine,  28 
Misc.  Rep.  533,  59  N.  Y.  Supp.  550. 

Id.;  counterclaim. —  Defendant  had  set  up  a  counterclaim,  and  had 
commenced  his  proof,  and  the  cause  was  adjourned  by  consent;  on  the 
adjournment  day  the  plaintiff  failed  to  appear;  the  justice  proceeded 
with  the  trial,  and  rendered  judgment  for  the  defendant  for  amount 
of  his  counterclaim.  Held,  that  the  justice  erred,  and  that  he  ought 
merely  to  have  dismissed  the  action.  ~Norris  v.  Bleakley,  3  Abb.  Pr. 
107;  s.  c,  1  Hilt.  90. 

3.  When  it  is  objected  at  the  trhl,  and  appears  by  the 
evidence  that  the  court  has  not  jurisdiction,  but  if  the  objec- 
tion be  taken  and  overruled,  it  is  cause  only  of  reversal  on 
appeal,  and  does  not  otherwise  invalidate  the  judgment;  if 
not  taken  at  the  trial  it  is  waived,  and  the  court  Avill  be 
deemed  to  have  jurisdiction. 

4.  Where  the  plaintiff  does  not  prove  his  cause  of  action. 

Notes  to  section  248,  subdivision  4. 

What  to  be  deemed  a  failure  of  proof. —  See  §   173. 

Contract;  damages;  wages. —  The  complaint  in  an  action  for  a  wrong- 
ful discharge  from  employment,  having  stated  every  fact  essential  to 
a  cause  of  action  for  damages  for  breach  of  the  contract,  should  not 
be  dismissed  because  the  demand  is  in  the  form  of  an  amount  due  for 
wages.  Williams  v.  Couriers,  53  App.  Div.  599,  66  X.  Y.  Supp.  LI. 
See  also  Lester  v.  Seilliere,  50  App.  Div.  239,  63  X.  Y.  Supp.  748. 

Cause  of  action  for  arrest  and  contract. —  Though  the  complaint  by 
an  unskilled  laborer,  under  a  statute  authorizing  an  execution  against 
the  person,  fails  to  state  a  cause  of  action  to  bring  the  case  within 
the  statute,  but  sets  out  a  sufficient  cause  of  action  for  service-,  plaintiff 


§249.  Judgments.  343 

should  not  be  nonsuited.  Wahkee  v.  Young,  29  Misc.  Rep.  G58,  01  N.  Y. 
Supp.  894.  See  also  Russell  v.  Corning  Mfg.  Go.,  49  App.  Div.  610, 
63  N.'Y.  Supp.  040. 

Replevin. —  Failure  to  make  out  a  case  in  replevin  where  defendant 
does  not  claim  title  to  himself  does  not  entitle  him  to  a  judgment  of 
possession  of  the  property  and  damages,  but  only  to  a  dismissal  of  the 
complaint.     Nichols  v.  Potts,  35  Misc.  Rep.  273. 

Set-off. — Where  the  complaint  was  for  damages  io  plaintiff's  prop- 
erty, and  the  defendant  answered  by  simply  averring  a  set-off, — Held 
error  to  order  a  nonsuit,  no  evidence  having  been  offered  by  either 
party.  The  defendant  admitted  plaintiff's  claim,  and  not  offering  any 
evidence,  judgment  should  have  been  rendered  for  the  plaintiff.  Greg- 
ory v.  Tralnor,  4  E.  D.  Smith,  58. 

Sunday. — A  judgment  cannot  be  entered  on  Sunday  (Hoghtaling  v. 
Osborn,  15  Johns.  119),  and  if  entered  is  void.  Hastings  v.  Farmer,  4 
N.  Y.  293. 

Tort  and  contract. —  A  complaint  stating  a  cause  of  action  upon  con- 
tract is  not  necessarily  made  for  conversion  by  alleging  that  defendant 
wrongfully  converted  a  balance  of  account  upon  the  sale  of  goods  con- 
signed to  him  for  sale  upon  commission,  and  in  such  case  the  complaint 
should  not  be  dismissed  at  the  close  of  plaintiff's  case,  if  he  has  made 
out  a  cause  of  action  for  the  proceeds  received  for  sales.  Fyfc  v.  Jack- 
son, 55  App.  Div.  74,  66  N.  Y.  Supp.  972.  See  also  Garter  v.  Eighth 
Ward  Bank,  33  Misc.  Rep.   128,  07  N.  Y.  Supp.  300. 

Where,  in  an  action  for  tort,  in  wrongfully  taking  and  converting 
plaintiff's  property,  there  is  an  entire  failure  to  show  that  it  was 
wrongful  or  tortious,  or  that  there  was  any  fraudulent  intent,  there 
should  be  a  nonsuit.  16  N.  Y.  250,  21  How.  Pr.  289,  5  Duer,  389; 
Hanson  v.  Wetmore,  39  Barb.  104;  Hawkes  v.  Burke,  34  Misc.  Rep.  189. 

§  249.  Judgment  of  dismissal  on  merits ;  when. —  Judgment 
that  the  action  be  dismissed  on  the  merits  with  costs  may 
he  rendered  in  the  following  cases : 

1.  Where,  at  the  close  of  the  whole  case,  the  court  is  of 
the  opinion  that  the  plaintiff  is  not  entitled  to  recover  as  a 
matter  of  law. 

2.  Where  the  court  sustains  a  demurrer,  and  no  leave  to 
plead  over  is  granted,  as  provided  in  this  act. 

Notes  to  section  249. 

This  section  is  new. 

Dismissal  and  merits. —  Dismissal  of  an  action  on  the  merits  for 
failure  of  proof  is  error  calling  for  a  reversal,  dismissal  without  preju- 


344  Judgments.  §§  250,  2*51. 

dice,  with  costs,  being  all  thai  is  within  the  power  of  the  justice  to 
order.     Merkin  v.  Gersh,  30  Misc.  Rep.  758,  <i.')  X.  V.  Supp.  75. 

Dismissal  of  the  complaint  at  the  close  of  plaintiff's  case  'hies  not 
justify  judgmenl  for  defendant  <>n  the  merits.  Lampert  v.  Ravid,  33. 
Misc.   Rep.   115,  67   N.  Y.  Supp.  82. 

A  judgment  of  nonsuit,  or  its  equivalent  —  a  dismissal  of  the  com- 
plaint not  upon  its  merits  in  this  court  —  is  error,  if  there  was  suffi- 
cient evidence  to  req  lire  a  decision  on  the  merits,  tichlcsinger  v.  Jud, 
(II  App.  Div.  453,  70  N.  Y.  Supp.  616. 

The  judgment  should  simply  provide  that  the  action  is  dismissed, 
with  costs,  without  prejudice  to  a  new  action.  Kieffer  v.  Metropolitan 
Street  Ry.  Co.,  31  Misc.  Rep.  780,  05  N.  Y.  Supp.  228. 

§  250.  Judgment  when  sum  exceeds  jurisdiction. —  Where 
the  amount  found  'due  to  either  party  exceeds  the  sum  for 
which  the  court  is  authorized  to  enter  judgment,  such  party 
may  remit  the  excess  and  judgment  may  be  entered  for  the 
residue. 

Note  to  section   250. 
This   section  is   the  same  as   section   1385   of  the   Consolidation   Act 
(Laws   1882,  chap.  410),  which  is  the  same  as  section  49,  chapter  344, 
Laws  1857,  from  which  latter  section,  section  3176  of  the  Code  of  Civil 
Procedure  is  taken. 

§  25.1.  Judgment  where  defendant  liable  to  arrest. —  When 
a  judgment  is  rendered  in  a  case  where  the  defendant  is 
subject  to  arrest  and  imprisonment  thereon,  it  must  be  so 
stated  in  the  judgment  and  entered  in  the  docket.  The  clerk 
of  the  court  in  the  district  in  which  such  judgment  is  en- 
tered, must  in  any  transcript  issued  by  him,  as  prescribed  in 
this  act,  insert  the  words  "  defendant  liable  to  execution 
against  his  person  "  and  a  like  note  must  also  be  made  in  the 
docket  of  a  judgment  by  a  county  clerk,  where  such  a  tran- 
script is  filed  with  such  clerk. 

Notes  to  section   251. 

This  section  is  the  same  as  section  1386  of  the  Consolidation  Act 
(Laws  1882.  chap.  410),  which  is  the  same  as  Laws  1857.  chapter  344, 
section  50,  down  to  the  words  "  and  entered  in  the  docket."  The  bal- 
ance is  taken  from  section  1393  of  the  said  Consolidation  Act. 

Adjudication. —  The  judgment  appealed  from  containing  nothing  to 
show  that  defendant   was  subject  to   arrest  and  imprisonment. — Held, 


§251.  Judgments.  .'545 

that  without  such  adjudication  he  could  not  be  arrested  and  impris- 
oned.    Banton   v.    Torrey,   29    Misc.   Rep.    742. 

Conversicn. —  Upon  recovery  by  plaintiff  in  an  action  for  conversion 
of  personal  property,  he  is  entitled  to  have  inserted  in  the  judgment 
a  provision  for  execution  against  the  person  of  defendant.  Searing  v. 
Goodstein,  11  Daly,  230:  s.  c,  11  Abb.  N.  C.  450;  s.  c,  2  Civ.  Proc. 
Rep.  464  j  Babcock  v.  Smith,  47  N.  Y.  St.  Rep.  118. 

Id.;  boarding-house-keeper's  lien. — An  action  to  enforce  a  boarding- 
house-keeper's  lien  upon  property  of  a  boarder  which  he  has  clandes- 
tinely removed  is  one  for  conversion  of  personal  property,  and  the 
justice  is  bound  to  insert  in  the  judgment  the  liability  of  the  defendant 
to  arrest  upon  execution.  Babcock  v.  Smith,  47  N.  Y.  St.  Rep.  118, 
19    N.    Y.    Supp.    817. 

Damages  and  costs. —  Judgment  for  plaintiff  suing  for  conversion 
should  be  for  the  damages  and  such  disbursements  and  fees  as  the 
statute  allows  and  such  costs  as  the  trial  justice  in  his  discretion 
deems  proper  within  the  statutory  limit.  Wilson  v.  Vallin,  32  Misc. 
Rep.    739. 

Docket;  entry  in,  afterward. — A  judgment  is  sufficiently  rendered 
when  an  entry  is  made  by  the  justice  in  his  minutes,  or  a  memoranda 
of  it  is  made  on  the  papers  or  copies  thereof,  if  made  in  five  days, 
although  no  entry  is  made  in  the  docket  until  afterward.  Risk  v.  Uffel- 
man,  7  Misc.  Rep.   133. 

Id.;  altering. —  The  alteration  of  the  docket,  after  judgment,  does  not 
affect  the  validity  of  the  judgment.     Dauchy  v.  Brown,  41   Barb.  555. 

Id.;  omission  to  keep. —  The  omission  by  a  justice  to  keep  his  docket 
in  the  manner  which  the  law  prescribes  does  not  render  a  judgment 
void,  as  the  proceedings  before  him  can  still  be  proved  by  himself. 
Baker  v.  Brintnall,  52  Barb.  188;   s.  c,  5  Abb.   Pr.  N.  S.  253. 

Duty  of  judge. —  It  is  the  duty  of  the  justice  to  pass  upon  the  ques- 
tion of  the  defendant's  liability  to  an  arrest,  as  definitely  as  upon  that 
of  his  liability  in  the  action,  and  to  embody  his  conclusion  in  his 
judgment. 

The  judgment  must  state  that  the  cause  is  one  in  which  the  defend- 
ant is  subject  to  arrest  and  imprisonment.  Carpentier  v.  Willett,  18 
How.  Pr.  400:  s.  c,  6  Bosw.  25,  31  N.  Y.  90,  1  Keyes,  510.  28  How.  Pr. 
225.  This  is  a  part  of  his  judicial  labor  and  duty.  After  judgment  the 
justice  has  no  jurisdiction;  he  is  functus  officio.  Carpentier  v.  Willett, 
31  N.  Y.  90:  s.  c.  28  How.  Pr.  225,  1  Keyes,  510;  People,  etc.  v.  Calla- 
han, 7  Daly.  434. 

It  is  the  duty  of  the  justice  to  state  in  the  judgment  where  an  arrest 
was  granted,  that  it  was  rendered  in  a  case  where  the  defendant  was 
subject  to  arrest  and  imprisonment,  and  so  enter  it  in  his  docket;  and 
for  his  failure  to  do  so,  the  judgment  will,  on  appeal,  be  reversed. 
Coles  v.  Eannigan,  8  Daly,  43.  See  also  Searing  v. Goodstein,  11  Daly, 
236;  s.  c,  11  Abb.  N.  C.  450,  2  Civ.  Proc.  Rep.  4G4. 


340  Judgments.  §252. 

Indorsement  en  summons. —  By  section  39,  it  is  required  that  where 
execution  against  the  person  may  issue  and  no  verified  complaint  is 
served,  the  summons  must  be  indorsed  in  the  following  form:  "  Plaintiff 
claims  defendant   i-  liable  to  arrest   and   imprisonment  in  this  case." 

Effect  of;  judgment. —  The  insertion  in  a  judgment  after  denial  of  a 
motion  to  vacate  an  order  of  arrest  obtained  in  the  action,  that  de- 
fendant is  liable  to  arrest  and  imprisonment,  is  not  conclusive  upon 
application  for  the  i  ischarge  of  the  imprisoned  debtor  as  to  whether 
the  debtor's  proceedings  are  just  and  fair.  Matter  of  Zeitz,  12  Civ. 
Proc.   Rep.   423. 

Goods  sold;  arrest  for  fraud;  proof  on  trial. —  In  an  action  for  goods 
sold  and  delivered  upon  affidavits  that  the  goods  were  obtained  by  false 
and  fraudulent  representations,  an  order  of  arrest  A\as  obtained  and 
defendant  was  arrested.  A  motion  to  vacate  the  order  of  arrest  was 
denied.  Held,  that  upon  the  trial,  proof  by  plaintiff  of  the  sale  and 
delivery  of  the  goods  and  nonpayment  therefor,  without  proof  of  the 
fraud  averred  in  the  affidavits,  was  sufficient  to  entitle  him  to  recover, 
and  to  have  execution  against  the  person  of  defendant.  Stem  v.  Mess, 
12  Daly.   516. 

Nature  of  the  action. — 'The  right  to  a  judgment  making  defendant 
liable  to  execution  against  his  person  depends  upon  the  nature  of  the 
action  and  not  upon  the  manner  of  commencing  it.  Searing  v.  Good- 
stein,  04  How.  427. 

Professional  misconduct. —  The  action  being  brought  in  this  court  to 
recover  the  sum  of  $20,  deposited  by  plaintiff  with  defendant  as  se- 
curity for  dental  work,  which  the  latter  agreed  to  perform  and  neg- 
lected and  refused  to  do,  and  refused  to  return  the  money  on  demand, 
an  inquest  was  taken  and  all  the  allegations  proved  except  the  fact 
that  defendant  was  licensed  and  authorized  to  practice  his  profession, 
— H<1>1.  that  the  justice  was  obliged  to  insert  the  words,  "defendant 
liable  to  arrest  and  imprisonment  on  execution,'*  in  the  judgment, 
under  Code  Civ.  Proc,  §  2895.  subd.  2,  as  for  "  misconduct  or  neglect 
in  a  professional  employment,  fraud,  or  deceit,"  the  section  being  made 
applicable  to  justice's  court  by  section  3018.  Haight  v.  Martin,  62 
App.  Div.  40iJ,  70  N.  Y.  Supp.  758. 

§  252.  Court  may  direct  verdict;  when. —  On  the  trial  of  an 
issue  of  fact,  before  the  court  and  a  jury,  the  court  may, 
in  a  proper  case,  direct  that  the  jury  render  a  verdict  as 
follows : 

1.  In  favor  of  the  plaintiff  or  petitioner. 

2.  Tn  favor  of  the  defendant,  respondent,  tenant,  under- 
tenant, assignee,  receiver,  squatter  or  person  holding  over. 


§  253.  Judgments.  347 

3.  Where  the  damages  are  liquidated,  in  favor  of  the 
plaintiff,  for  a  specif ed  sum. 

4.  Where  the  defendant  has  interposed  a  counterclaim, 
and  the  damages  are  liquidated,  in  favor  of  the  defendant 
for  a   specified  sum. 

5.  Where  the  plaintiff  has  proved  his  case,  but  the  dam- 
ages are  uncertain,  that  the  jury  render  a  verdict  in  favor 
of  the  plaintiff  and  determine  the  amount. 

0.  Where  the  defendant  has  interposed  a  counterclaim 
and  proved  his  case,  and  the  damages  are  uncertain,  that  the 
jury  find  a  verdict  in  favor  of  the  defendant  and  determine 
the  amount. 

Notes  to  section  252. 

This  section  is  new  and  gives  this  court  power  similar  to  that  pos- 
sessed by  a  judge  of  a  court  of  record,  under  section  1187  of  the  Code 
of  Civil  Procedure. 

For  decisions  under  this  section,  see  the  Annotated  Codes  of  Civil 
Procedure,    §    1187. 

Defects  cured  by  verdict,  etc.,  and  by  judgment. —  See  §  721,  Code 
Civ.  Proc. 

Jurisdiction. —  Under  section  1,  subdivision  19,  this  court  is  given 
power  to  direct  a  verdict,  etc. 

§  253.  Court  may  open  default. —  The  court,  in  a  district 
in  which  a  default  is  taken,  in  an  action  or  summary  pro- 
ceeding, may  at  any  time,  upon  motion  made  upon  such 
notice  as  the  court  may  direct,  open  such  default,  and  set 
aside,  vacate  or  modify  any  judgment  or  final  order  entered 
thereon,  and  set  the  action  or  proceeding  down  for  pleading, 
hearing  or  trial,  as  the  case  may  require,  upon  such  terms 
and  conditions  as  the  court  may  deem  proper. 

Notes  to  section  253. 

This  section  is  taken  from  the  first  part  of  section  1367  of  the  Con- 
solidation Act  (Laws  1882,  chap.  410),  which  was  Laws  1862,  chapter 
484,  section  16.  The  "  court "  may  at  any  time  open  the  default,  upon 
such  notice  as  it  may  direct,  in  either  an  action  or  "  summary  pro- 
ceeding." This  was  not  formerly  so  in  summary  proceedings.  See 
Cochran  v.  Reich,  20  Misc.  Rep.  593,  and  Boyd  v.  Milone,  24  Misc.  Rep. 
734. 


.1  I  DGMENTS.  §   253. 

This  section  vests  this  court  with  greater  power  than  that  possessed 
by  a  court  of  record,  in  thai  it  can  "  open  such  default  and  set  aside, 
vacate,  <t  modify  any  judgment  or  final  order  entered  thereon,  at  any 
time,"  while  a  court  of  record  can  only  do  this  "at  any  time  within 
one  yedr  after  notice  thereof.'"  See  S  724,  Code  Civ.  Proc.  This  an- 
nul- the  decision  in  Feist  v.  The  Third  Ave.  /.'.  A'.  ''"..  13  Misc.  Rep.  240. 
where  it  was  held.  "  The  justice  of  a  District  Court  has  no  power  to 
open  a  default  alter  the  Lapse  of  twenty  days  from  the  entry  of  the 
judgment.  Section  724  of  the  Code  of  Civil  Procedure,  declaring  the 
power  of  the  courts  to  open  defaults  within  one  year,  applies  only  to 
court-  of   record." 

Adjournment. — After  return  day  the  court  has  no  power  in  the  interim 
to  render  judgment  as  upon  defendant's  default  in  answering.  Whit- 
man, etc.  v.  Hamilton,  27  Misc.  Rep.   198,  57  X.  Y.  Supp.  760. 

Affidavit  of  merits  by  the  defendant  is  necessary  upon  a  motion  to 
open  a  default,  and  this  must  be  drawn  according  to  Rule  23  of  the 
Supreme  Court,  which  is  as  follow-: 

"Whenever  it  -hall  he  necessary,  in  any  affidavit,  to  swear  to  the 
advice  of  counsel,  the  party  shall,  in  addition  to  what  has  usually  been 
inserted,  swear  that  he  has  fully  and  fairly  stated  the  ease  to  his  coun- 
sel, and  shall  give  the  name  and  place  of  residence  of  such  counsel. 
When  an  affidavit  of  merits  has  once  been  filed  and  served,  no  other 
shall  be  necessary.  But  on  making  a  motion,  such  service  and  filing 
must   he   shown   by  affidavit.' 

The  affidavit  must  pursue  language  of  rule.  Bank  of  Utica  v.  Root, 
4   Hill,   535. 

An  affidavit  of  merits  is  required,  or  service  and  filing  thereof  must 
be  shown  by  affidavit,  Thornall  v.  Turner,  23  Misc.  Rep.  363,  51  N.  Y. 
Supp.  214.     See  also  Davis  v.  Solomon,  25  Misc.  Rep.  695. 

An  affidavit  on  which  a  default  on  the  part  of  defendant  and  judgment 
for  plaintiff  were  opened,  which  does  not  state  that  an  affidavit  of 
merits  was  made  or  filed,  and  that  manifest  injustice  has  been  done,  to 
defendant  is  fatally  defective.  Cahill  v.  Lilienthal,  30  Misc.  Rep.  -12!). 
62   X.   Y.   Supp.   524. 

An  order  of  this  court  opening  a  defendant's  default  will  be  reversed, 
if  no  affidavit  of  merits  has  been  made  or  served  and  no  defense  proved. 
Sandowitz  v.  Duane,  30  Misc.  Rep.  630,  62  X.  Y.  Supp.  744. 

For  cases  applicable  to  the  sufficiency  of  an  affidavit  of  merits    see 

cases  under  this  rule  in  Gumming  &  Gilbert's  Official  Court  Rules,  p.  90. 

Appeal  from  order  opening  default. —  By  section  257,  ''no  appeal  lies 

in   the  first   inst<ii>e<    from  an  order  opening  a  default  and  vacating  a 

judgment   entered    thereon." 

The  remedy  is  by  appeal  from  the  judgment,  Bcebc  v.  Nassau  Show 
Case  Co.,  41  App.  Div.  456,  56  N.  Y.  Supp.  769.  See  notes  to  §§  257 
and  310. 


§  253.  Judgments.  349 

Default;  what  is  a. —  Where  a  defendant  is  personally  absent,  and 
his  counsel  makes  an  application  for  a  postponement,  which  is  denied, 
and  defendant's  counsel  remains  during  the  inquest  and  cross-examines 
plaintiff's  witnesses  merely,  such  cross-examination  does  not  change 
the  inquest  or  default  into  a  trial.  It  is  a  default  within  the  meaning 
of  the  statute  giving  District  Court  judges  power  to  open  defaults. 
People  v.  Langbein,  12  Week.  Dig.  20,  11  Rep.  746. 

Id.;  discretionary. —  Opening  defaults  are  discretionary,  and  there- 
fore are  not  reviewable  on  appeal,  except  perhaps  they  exhibit  an  abuse 
of  discretion.  Keller  v.  Feldman,  49  N.  Y.  St.  Rep.  718;  s.  c,  29  Abb. 
N.  C.  426.  See  also  Tooker  v.  Booth,  7  Misc.  Rep.  421;  Hurry  v.  Coffin, 
II  Daly,  180. 

Id.;  summons  not  personally  served,  and  defendant  not  appearing,  is 
not  a  default,  for  the  defendant  was  not  served.  The  remedy  is  not  by 
motion  to  open  the  default  but  by  appeal  from  the  judgment  as  is  pro- 
vided by  section  311,  which  see  and  notes. 

Denial  of  motion  with  leave  to  renew;  judgment  entered  by  default. 
The  remedy  is  to  open  the  default,  and  not  an  appeal  from  the  judg- 
ment.    Edelson  v.  Epstein.  27  Misc.  Rep.  543.  58  N.  Y.  Supp.  334. 

Dishonest,  immoral,  and  unconscionable  defenses. —  Where  the  de- 
fenses which  the  defendant  seeks  to  interpose  are  dishonest,  immoral, 
and  unconscionable,  the  default  and  judgment  should  not  be  opened. 
The  defense  should  be  to  the  merits.  Lovett  v.  Cowman,  6  Hill,  225; 
Beach  v.  Fulton  Bank,  3  Wend.  585,  10  Paige,  374,  3  Wend.  561;  King 
v.  Merchants7  Ex.  Co.,  2  Sandf.  603,  697:  Jackson  v.  Varish,  2  Wend. 
294. 

Id.;  usury,  and  the  statute  of  limitations  are  unconscionable  defenses, 
which  the  court  will  not  allow  a  defendant  to  plead  in  opening  a  default 
regularly  taken.  Wagner  v.  fickle,  3  Paige.  407;  National  Fire  Ins.  Co. 
v.  Sackett,  11  Paige,  669;  Quincy  v.  Foot,  1  Barb.  Ch.  496;  Watt  v. 
Watt,  2  Barb.  Ch.  371;  Jackson  v.  Varish,  2  WTend.  294;  Lorett  v. 
Cowman,  6  Hill,  225;  Jackson  v.  Murray,  1  Cow.  158;  Utica  Ins.  Co. 
v.  Scott,  6  Cow.  606;  Hallayen  v.  Golden,  1  Wend,  302.  See  also 
Fulton  Bank  v.  Beach,  1  Paige,  429,  3  Wend.  573,  585;  Utica  Ins. 
Co.  v.  Scott,  6  Cow.  606;  Law  v.  Merrills,  6  Wend.  268,  277,  279; 
Hawes  v.  Hoyt,  11  How.  Pr.  454;  Morris  v.  Slattery,  6  Abb.  Pr.  74; 
Farish  v.  Corlies,  1  Daly.  274;  Toole  v.  Cook,  16  How.  Pr.  454;  Sagory 
v.  N.  Y.  d  X.  H.  R.  R.  Co.,  21  How.  Pr.  455;  McQueen  v.  Babcock,  22 
How.  Pr.  229 ;  s.  c.  13  How.  Pr.  268.  Leave  was  refused  to  add  a  plea 
of  the  statute  of  limitation.  Cox  v.  Robt,  2  Wils.  253;  Coit  v.  Skinner, 
7  Cow.  401;   Wollcott  v.  McFarlan,  6  Hill,  227. 

Id.;  insolvent  discharge  cannot  be  allowed  upon  opening  a  default. 
Dcsobry  v.  Morange,  18  Johns.  336;  Price  v.  Peters,  15  Abb.  Pr.  197. 

Id.;  technical  objections. —  A  default  will  not  be  opened  to  enable  a 
party  to  raise  technical  objections.  Champlin  v.  Mayor,  3  Paige,  573; 
Gary  v.  Gay,  10  Paige,  369;  Winship  v.  Jewett,  1  Barb.  Ch.  173. 


350  Judgments.  §253. 

Id.;  penalty  or  forfeiture. —  The  defendant  will  not  be  allowed  any 
grounds  of  defense  which  are  in  the  nature  of  a  penalty  or  forfeiture. 
Wagner  v.  Sickle,  3  Paige,  407. 

Good  faith;  doubtful  defenses. —  If  the  good  faith  of  the  defense  is 
doubtful,  the  default  will  not  be  opened.  Onderdonk  v.  Rawlett,  3  Hill, 
323;  Irroy  v.  Xuthan,  4  E.  D.  Smith,  58;  Peace  v.  Gleason,  8  Johns. 
409;  Rawson  v.  Crow,  4  E.  D.  Smith,  18. 

Excuse  for  opening  default. —  A  satisfactory  excuse  must  be  shown, 
and  also  that  manifest  injustice  has  been  done.  A  mere  affidavit  of 
merits  is  not  sufficient.  Jewel  v.  Heiwsel,  C>  Daly,  411;  Fouler  v.  Colyer, 
2  E.  D.  Smith,  125;  Armstrong  v.  Craig,  18  Barb.  387. 

It  is  not  sufficient  to  state  mere  conclusions  from  facts,  but  the  facts 
themselves  must  be  stated  in  such  a  manner  that  the  court  will  be 
authorized  to  infer  from  such  facts  that  injustice  has  been  done.  Same 
cases  above  mentioned;  Haughley  v.  Wilson,  1  Hilt.  259;  Sheldon  v. 
Campbell,  5  Hill,  508. 

The  manner  in  which  the  injustice  has  been  done  should  be  pointed 
out  in  the  affidavit.     Mayer  v.  Greene,  1  Hilt.  390. 

The  neglect  must  be  the  result  of  an  honest  accident  or  mistake. 
Macumber  v.  Mayor,  17  Abb.  Pr.  35. 

A  party  who  seeks  to  prove  that  injustice  has  been  done  to  him 
should  offer  proof  other  than  his  own  affidavit,  especially  if  contra- 
dicted by  plaintiff's  affidavits.  If  he  cannot  obtain  the  affidavit  of  an- 
other witness,  he  should  at  least  show  that  there  are  witnesses  who 
refuse  to  give  their  affidavit,  and  which,  if  produced,  would  reduce  or 
disprove  plaintiff's  claim.  Lent  v.  Jones,  4  E.  D.  Smith,  52;  Silkman 
v.  Bolger,  4  E.  D.  Smith,  236;  Foster  v.  Capewell,  1  Hilt.  47. 

Id.;  sufficient  excuses. —  Where  the  defendant  was  under  the  necessity 
of  leaving  town,  that  he  had  prepared  his  defense,  and  had  given  the 
matter  in  charge  of  a  person  who  was  to  see  his  attorney  and  inform 
him  to  attend  on  the  return  day  of  the  summons;  that  the  person 
forgot  the  message,  it  was  held  to  be  a  sufficient  excuse.  Camp  v. 
Stewart,  2  E.  D.  Smith,  88. 

Where  the  defendant  delivered  the  summons  to  his  attorney,  but 
such  attorney  was  under  the  necessity  of  leaving  the  city,  and  who 
therefore  placed  the  summons  into  the  hands  of  another  attorney,  who 
promised  to  appear;  that  the  latter  had  the  summons  locked  up,  and 
had  lost  the  key  and  went  to  the  wrong  court,  and  in  consequence 
thereof  a  judgment  wTas  taken,  this  was  considered  a  sufficient  excuse. 
Lent  v.  Jones,  4  E.  D.  Smith,  52. 

Where  it  appears  that  a  defendant  really,  intends  to  appear  and  de- 
fend an  action,  and  that  he  has  a  good  defense,  and  that  he  failed  to 
appear  in  consequence  of  any  excusable  mistake,  the  court  will  relieve 
him  upon  proper  terms.  Seymour  v.  Elmer,  1  E.  I).  Smith,  199;  s.  c, 
1  Abb.  Pr.  412;   Bissell  v.  Dean,  3   E.  D.   Smith,   172;    Gottsberger  v. 


§  '2o'3.  Judgments.  351 

Harned,  2  E.  D.  Smith,  128;  Gardner  v.  Wight,  3  E.  D.  Smith,  334. 
Where  the  acts  of  the  plaintiff  are  the  cause  of  defendant's  not  ap- 
pearing, and  a  default  is  taken,  this  will  be  a  good  excuse.  Beach  v. 
McCann,  1  Hilt.  250;  s.  c,  4  Abb.  Pr.  IS;  Beebe  v.  Roberts,  3  E.  D. 
Smith.  194. 

The  manner  of  serving  the  summons  may  be  such  as  to  excuse  the 
defendant  from  appearing  in  the  action,  and  to  entitle  him  to  relief 
against  a  judgment  entered  by  default  upon  such  service.  2  Wait's 
Law  and  Practice,  68:   Carroll  v.  Goslin,  2  E.  D.  Smith,  37G. 

Where  the  plaintiff  obtains  judgment  by  default  upon  a  false  state- 
ment that  the  defendant  does  not  intend  to  appear  and  defend,  the  de- 
fault will  be  opened.     Beach  v.  McCann,  1  Hilt.  256. 

Where  the  summons  stated  that  the  defendant  was  required  "  to 
answer  the  complaint  of  the  plaintiff  for  professional  services,"  and 
it  appeared  that  the  defendant  believed,  from  the  wording  of  the  sum- 
mons and  the  facts  within  his  knowledge,  that  the  action  was  for  a 
claim  which  he  admitted  to  be  due,  and  for  that  reason  he  failed  to 
appear,  whereupon  the  plaintiff  recovered  judgment  for  a  greater,  and 
for  an  entirely'  different  claim, —  Held  sufficient  as  an  excuse.  Bissel 
v.  Dean,  3  E.  D.  Smith,  172.  See  also  Lent  v.  Jones,  4  E.  D.  Smith, 
52. 

Id.;  insufficient  excuses. —  Engagements  of  defendant  and  of  his  at- 
torney elsewhere,  without  stating  the  nature  of  those  engagements,  are 
not  a.  sufficient  excuse.     Mulhern  v.  Hyde,  3  E.  D.  Smith,  177. 

Attending  to  other  business  is  not  necessarily  a  good  excuse  for 
opening  a  default.     Fowler  v.  Collyer,  2  E.  D.  Smith,  125. 

When  merits  are  not  disclosed  and  clearly  apparent,  the  mere  ab- 
sence of  counsel  will  not  be  held  a  sufficient  excuse.  6  Abb.  Pr.  74; 
Ward  v.  Ruckmun,  22  How.  Pr.  230. 

Or  the  misconduct  or  negligence  of  the  attorney.     4  Abb.  Pr.   11. 

Putting  the  summons  in  a  pocket  and  forgetting  it  till  the  time  of 
its  return  had  passed  is  not  an  excuse  for  a  default.  Ball  v.  Mandcr, 
10  How-.  Pr.  468. 

Neither  is  ignorance  of  law-  proceedings  (Mayor,  etc.,  of  New  York 
v.  Green,  1  Hilt.  303),  or  forgetting  the  matter  until  after  judgment 
is  rendered  (Ball  v.  M under,  19  How.  Pr.  468;  Beebe  v.  Roberts,  3  E.  D. 
Smith,  194;  Mica  v.  Warte,  1  E.  D.  Smith,  614),  or  not  hearing  the 
cause  called,  although  present  in  court.  Forster  v.  Capewell,  1  Hilt. 
47.  Relying  upon  the  promise  of  another,  that  the  case  would  be 
adjourned,  is  not  a  sufficient  excuse,  unless  it  is  shown  the  party  in- 
tended to  deceive.     Travis  v.  Bassett,  3  E.  D.  Smith.  171. 

Laches. —  A  motion  to  open  a  default  with  leave  to  come  in  and 
defend,  made  six  years  after  entry  of  judgment,  and  after  supple- 
mentary proceedings  to  reach  property  in  the  hands  of  a  third  party 
have  been  commenced,  where  no  satisfactory  explanation  for  the  delay 
is  given,  should  be  denied.     Tooker  et  al.  v.  Booth,  7  Misc.  Rep.  421. 


; ; 5 2  Judg  m  e n ts.  §  254. 

Not  matter  of  right. —  If  the  judgment  was  regularly  obtained,  the 
defendanl  is  ool  fii t it i . ■»  1.  as  a  matter  of  right,  to  have  it  opened.     The 

granting  of  the  motion  rots  in  the  discreti >f  the  court.     Farish  v. 

Corlies,  1  Daly.  227.  It  i>  a  matter  of  grace  and  favor,  and  if  either 
granted  or  refused,  is  final  and  not  appealaole.  Bard  v.  Ford,  1 
NT.  Y.  43. 

Defaults  and  judgments  are  only  opened  in  furtherance  of  strict 
moral  justice.  Eau  >&  \.  Hoyt,  11  How.  Pr.  4.54;  Leighton  v.  Wood, 
17   Abb.   Pr.   177. 

Poor  person. —  Leave  to  sue  as  a  poor  person  does  not  deprive  the 
court  of  power  to  impose  costs  against  such  person  as  a  condition  upon 
which  a  judgment  by  default  will  be  opened.  Newgroske  v.  Manhattan 
R.  R.  Co.,  1   \.  Y.  St.  Rep.  302:   Elwin  v.  Routh,  1  Civ.  Proc.  Rep.  131. 

Order  vacating  order  opening  default  for  noncompliance  with  condi- 
tions.—  See  Schwartz  v.  Schendel,  23  Misc.  Rep.  470,  51  X.  Y.  Supp.  415. 

Reversal  of  order  setting  aside  defendant's  default. — All  proceedings 
taken  thereunder  fall  with  it,  and  judgment  for  defendant  rendered, 
pending  the  appeal  from  the  order,  must  be  reversed.  Weinberg  v. 
Frank,  25  Misc.  Rep.  788,  50  N.  Y.  Supp.  !)20. 

Statute. —  The  statute  is  remedial,  and  should  be  liberally  construed 
for  the  purpose  of  advancing  the  remedy  to  be  obtained.  4  Wait's  Pr. 
470;  People  v.  Campbell,  18  Abb.  Pr.   1. 

Writ  of  prohibition  will  not  lie  to  prevent  the  exercise  of  the  judge's 
discretion  upon  an  application  to  open  the  default.  People  v.  Lang- 
bein,  12  Week.  Dig.  20;   s.  c,  11   Rep.  740. 

Summons  not  personally  served,  and  defendant  not  appearing,  he  is 
allowed  to  appeal  within  twenty  days  after  personal  service  upon  him 
of  written  notice  of  entry  of  judgment.  See  §  311  and  notes.  The 
remedy  is  not  by  motion  to  open  the  default,  for  there  is  no  default, 
as   the  defendant  was  not  served. 

Sunday. —  An  order  returnable  on  Sunday  is  a  nullity.  Arctic  Fire 
Ins.  Co.  v.  Hicks,  7   Abb.  Pr.  204. 

§  254.  Motion  to  set  aside  verdict  or  vacate  or  amend  judg- 
ment.—  A  motion  to  set  aside  the  verdict  of  a  jury,  and 
vacate,  amend  or  modify  a  judgment  rendered  thereon,  or 
to  vacate,  amend  or  modify  any  judgment  rendered  upon  a 
trial,  by  the  court,  without  a  jury,  may  be  made  upon  the 
exceptions  taken  at  the  trial,  or  because  the  verdict  is  for 
excessive  or  insufficient  damages,  or  otherwise  contrary  to 
the  evidence,  or  contrary  to  law,  provided  said  motion  is 
made  at  the  close  of  the  trial  or  within  five  days  from  the 
time  the  judgment  was  rendered  and  in  the  latter  case  at 


§  254.  Judgments.  353 

least  two  days  notice  of  said  motion  is  given,  to  the  opposing 
attorney,  or  party  if  there  be  no  attorney  of  record.  The 
judge  who  presided  at  the  trial  may  make  an  order  setting 
aside  the  verdict  or  amending,  modifying  or  vacating  the 
judgment  and  awarding  a  new  trial,  and  setting  the  cause 
down  for  trial  for  a  time  to  be  specified  in  the  order,  as  the 
case  may  require. 

Notes  to   section   254. 

This  section  is  taken  from  section  1367  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  which  was  Laws  1862,  chap.  484,  §  16,  and 
is  somewhat  similar  to  section  999  of  the  Code  of  Civil  Procedure. 

Section  1,  subdivision  19,  "Jurisdiction,"  gives  power  to  this  court 
to  direct   a  verdict,  etc. 

By  section  1.  subdivision  15,  this  court  has  power  to  grant  a  stay 
of  proceedings  not  to  exceed  five  days. 

Application  is  one  of  right. —  Entry  of  judgment  by  the  justice  before 
deciding  the  motion  works  no  injustice,  as  the  application  is  one  of 
right.  Cunningham  v.  Nassau  Elec.  R.  R.  Co.,  40  App.  Div.  211,  58 
N.  Y.  Supp.  22. 

Bias,  prejudice,  or  passion. — A  verdict  should  not  be  set  aside  ex- 
cept where  the  court  can  fairly  say  that  the  jury  were  led  away  from 
a  proper  consideration  of  the  evidence  by  bias,  prejudice,  or  passion, 
or  that  they  failed  to  give  some  of  the  proof  the  weight  which  it  obvi- 
ously deserved.     Forst  v.  Farmer,  21   Misc.  Rep.  64. 

Damages;  excessive. — -Where  the  only  damages  shown  to  have  re- 
sulted from  an  eviction  were  $14  for  removing  goods,  and  an  excess  of 
rent  of  $15  a  month  for  five  months,  which  the  party  was  compelled  to 
pay  for  other  premises,  a  verdict  for  $150  is  clearly  excessive.  O'Gor- 
man  v.  Teets,  20  Misc.  Rep.  359;  Eschlbach  v.  Hughes,  7  Misc.  Rep.  172. 

Id. ;  improper  elements  of. —  A  verdict  will  not  be  set  aside,  because 
of  improper  elements  of  damage,  evidence  as  to  which  was  not  ob- 
jected to  at  the  time.     Murphy  v.  Street  R.  R.  Co.,  19  Misc.  Rep.   194. 

New  trial  in  furtherance  of  justice. —  On  appeal,  new  trial  ordered 
under  Curley  v.  Tomlinson,  5  Daly,  283,  on  the  ground  that  the  ends 
of  justice  required  it.  Jourdan  v.  Healy,  46  N.  Y.  St.  Rep.  198;  s.  c. 
22  Civ.  Proc.  Rep.  157,  19  X.  Y.  Supp.  240.  See  also  McLaughlin  v. 
Harriott.   14  Misc.  Rep.   343,  and  cases  cited. 

Notice  of  motion;  irregularity;  setting  aside  verdict. —  Defendant's 
moving  to  set  aside  the  verdict  immediately  after  it  is  brought  in, 
instead  of  giving  the  five  days'  notice  prescribed  by  statute,  is  merely 
an  irregularity,  waived  by  plaintiff's  proceedings  to  the  argument 
without  objection.  Cunningham  v.  Nassau  Elec.  R.  R.  Co.,  40  App.  Div. 
211,  58  X.  Y.  Supp!  22. 

23 


354  Judgments.  §§  255,  256. 

Id.;  notice  of  motion;  waiver  of. —  The  statutory  requirement  of  not 
less  than  five  days1  notice  of  motion  to  sel  aside  a  verdict  may  be 
waived,  and  is  so  waived  by  failure  to  object  on  the  ground  of  in- 
sufficiency of  notice  when  the  motion  is  made.  Krakower  v.  Davis,  20 
Misc.  Rep.  350. 

Where  a  verdict  is  sei  aside,  if  the  appellant  is  entitled  to  the  five 
days"  notice  prescribed  in  section  1309  of  the  Charter,  the  right  to 
notice  is  waived  if  the  objection  to  its  omission  is  not  made  at  the 
time.  Scharmann  &  Sons  v.  Bard,  (i»>  App.  Div.  449,  69  X.  Y.  Supp. 
1033. 

Order  setting  the  case  down,  etc. —  An  order  of  this  court,  vacating 
and  setting  aside  a  judgment  against  plaintiff  absolutely,  without  set- 
ting the  ease  down  for  pleading,  hearing,  or  trial. —  Held  unauthor- 
ized.    Woldock  v.  Tombarelli,  32  Misc.  Rep.  694,  66  X.  Y.  Supp.  504. 

For  further  authorities  under  this  section,  see  notes  to  §  999,  Code 
Civ.  Proc. 

§  255.  New  trial;  fraud  or  newly  discovered  evidence. —  The 
court  may  also  in  a  proper  case,  grant  or  deny  a  motion  for 
a  new  trial  on  the  ground  of  fraud  or  newly  discovered 
evidence,  and  from  the  order  an  appeal  shall  lie  as  from  a 
judgment  in  said  court. 

Notes  to   section  255. 

This  section  is  new. 

By  section  1.  "  Jurisdiction,''  subdivision  19,  this  court  is  given 
power  to  "grunt  a  new  trial,  open  a  default,  or  in  a  proper  case  grant 
a  new  trial  on  the  ground  of  fraud  or  newly-discovered  evidence.'' 
That  section  does  not,  by  its  terms,  give  the  court  power  to  deny  a 
new  trial,  the  words  "or  deny"  being  omitted.  This  jurisdiction  or 
power  is  however  given  by  this  section  by  express  words  "grant  or 
deny." 

In  Robb  v.  Osgoodby,  20  Misc.  Rep.  G22,  it  was  held  that,  under 
Laws  1896,  chap.  748,  amending  the  Consolidation  Act,  §  13G7,  an 
appeal  from  an  order  granting  a  new  trial  was  authorized,  but  that 
it  did  not  authorize  an  appeal  from  an  order  denying  a  motion  for  a 
new  trial. 

By  section  1.  subdivision  15,  this  court  has  power  to  grant  a  stay 
of  proceedings  not  to  exceed  five  days. 

For  appeals  generally,  see  tit.  IX,  "Appeals,"  §§   310  to  327. 

§  256.  Court  may  impose  conditions,  et  cetera. —  The  court 
may  award  such  costs,  not  exceeding  ten  dollars,  for  opening 


§257.  Judgments.  355 

any  default,  or  vacating,  amending,  modifying  or  setting 
aside  any  judgment  against  any  party  to  the  action  as  in  its 
discretion  shall  be  just  and  proper.  It  may  as  a  condition 
for  opening  any  default,  or  vacating,  amending,  modifying 
or  setting  aside  any  judgment,  order  any  defendant  in  de- 
fault to  deposit  the  amount  of  the  judgment  with  the  clerk 
of  the  court  or  to  give  an  undertaking  with  sufficient  sureties 
to  the  effect  that  such  defendant  will  not  sell,  assign,  or 
transfer  any  of  his  property  with  intent  to  hinder,  delay  or 
defraud  the  plaintiff  in  the  collection  of  his  claim  or  demand, 
if  the  plaintiff  shall  prevail  on  the  trial  of  such  action,  and 
that  such  defendant  or  his  sureties  will  pay  the  amount  of 
any  judgment  recovered  against  such  defendant  in  such 
action. 

Notes   to   section   256. 

This  section  is  taken  from  section  1307  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  which  was  Laws  1862,  chap.  484,  §  16.  See 
§  253,  "  Court  may  open  default,"  and  notes. 

Compliance  with  order. —  Where  a  default  is  opened  upon  terms, 
the  defendant  must  comply  with  the  terms  or  he  will  lose  the  benefit 
of  the  order.     Mitchell  v.  Merikel,  1  Hilt.   142. 

As  to  feeling  aggrieved  at  the  terms,  noncompliance  therewith,  and 
appeal,  see  Witowski  v.  Maisner,  21  Misc.  Rep.  487;  s.  c,  47  N.  Y. 
Supp.   500. 

Referee's  fees. —  A  justice  of  this  court  has  no  power  however, 
upon  granting  a  motion  to  open  a  default,  to  order  a  judgment  in 
favor  of  the  defendant  for  the  fees  of  a  referee  before  whom  the  par- 
ties were  directed  by  the  justice  to  appear  for  an  examination  upon  the 
disputed  question  of  facts  as  to  whether  the  summons  had  been  served, 
and  the  consent  of  the  parties  that  the  unsuccessful  one  should  pay 
the  referee's  fees  confers  no  jurisdiction.  Xzcrlip  v.  Baier  et  al.,  21 
Misc.  Rep.  331. 

This  court  has  no  power  to  appoint  a  referee  on  consent.  Barber  v. 
Lane,  60  App.  Div.  87. 

§  257.  An  appeal  shall  lie  from  an  order  granting  or 
denying  a  motion,  made  as  provided  in  the  last  four  sections; 
as  from  a  judgment;  except,  that  no  appeal  shall  lie  in  the 
first  instance  from  an  order  opening  a  default  and  vacating 
a  judgment  entered  thereon. 


356  Judgments.  §257. 

Notes   to  section    257. 

Tliis  section  ia  now,  and  i->  omitted  from  the  contents  or  enumeration 
of  sections  in  title  VII,  article  1.  which  states  only  sections  248  to 
256.     See  note  to  art.  I,   "Judgments." 

As  to  appeals  generally,  see  tit.  IX,  "Appeals,"  §  310,  etc. 

Appeal  from  order  opening  a  default. —  This  section  declares  that 
an  appeal  shall  lie  from  an  order  granting  or  denying  a  motion  made 
as  provided  in  the  Last  four  sections,  as  from  a  judgment.  Thi.;  in- 
cludes section  253,  "  Court  may  open  default."  Section  257  continues, 
"except  that  no  appeal  shall  lie  in  the  first  instance  from  an  order 
"  opening  *'  a  default,"  etc.  Thus,  after  including  section  253  by  the  pro- 
visions of  the  first  half  of  section  257,  it  is  excepted  and  excluded  by 
the  other  half  of  the  same  section.  Assuming  that  the  last  declara- 
tion, or  provision,  controls,  the  situation  is  that,  in  three  of  the  sec- 
tions, sections  253,  254,  and  255,  an  appeal  from  an  order  may  be 
taken  directly  from  the  order,  as  if  the  order  was  a  judgment,  or  as 
if  the  appeal  was  from  the  judgment,  but,  in  the  case  of  an  order 
"  opening  a  default,"  no  appeal  can  be  taken  directly  from  the  order 
in  the  first  instance,  but  the  appeal  must  be  taken  from  the  judgment 
entered,  which,  of  course,  must  contain  the  order.  It  must  be  observed 
that  this  provision  does  not  apply  to  an  order  denying  a  motion  to 
open  a  default.  Laws  1896,  chap.  748,  amending  the  Consolidation 
Act,  §  1367,  authorized  an  appeal  from  an  order  granting  a  new  trial, 
but  did  not  authorize  an  appeal  from  an  order  denying  a  motion  for 
a  new  trial;  a  motion  to  dismiss  the  appeal  was  therefore  granted. 
Nobb  v.   Osgocdby.   20  Misc.  Rep.    622. 

Appeal  from  judgment. — -No  appeal  lies  from  an  order  of  this  court 
denying  a  motion  to  open  a  default ;  the  remedy  is  by  appeal  from 
the  judgment.  Beebe  v.  Nassau  Show  Case  Co.,  41  App.  Div.  456,  58 
N.  Y.   Supp.  769. 

Noncompliance  with  terms  of  order  opening  default. —  Where  the 
defendant's  default  is  opened,  by  an  order,  upon  terms  by  which  he  con- 
siders himself  aggrieved,  he  must,  in  order  to  procure  a  review  of  the 
terms,  appeal  from  the  order,  as  his  appeal  from  the  judgment,  after 
having  failed  to  comply  with  the  terms,  is  ineffectual  for  such  a  review. 
Witowski  v.  Maisner,  21   Misc.  Rep.  487;   s.  c.  47  X.  Y.  Supp.  599. 

On  reversal  of  an  order  setting  aside  defendant's  default,  all  pro- 
ceedings taken  thereunder  fall,  and  judgment  for  defendant  rendered 
pending  the  appeal  from  the  order  must  be  reversed.  Weinberg  v. 
Frank,  25   Misc.  Rep.  788,  56  XT.  Y.  Supp.  920. 

Note. —  There  are  no  sections  from  257  to  260. 


200.  Execution.  357 


ARTICLE    II. 

Execution. 
Section  2G0.  How  issued. 

261.  Transcript,   how   to    issue;    judgment   of   supreme   court; 

when  docketed. 
2(12.  When  satisfaction  of  judgment  presumed. 
203.  Real   property  bound   for  ten   years  by  a  judgment  thus 
docketed. 

264.  Judgment,   and   effect   of,   against   defendants   jointly   in- 

debted when  all  are  not  served. 

265.  Execution;  indorsement  thereupon. 

266.  How  collected. 

267.  Judgment,  how  docketed;  effect  of  docketing, 
2GS.  Action  against  joint  debtors. 

269.  Docketing  judgment  in  another  county. 

270.  Judgment  against  marshal. 

271.  Execution;   requisites. 

272.  Arrest. 

273.  Removal  of  execution. 

274.  Judgment  in  favor  of  wage-earner. 

275.  Arrest  and  sale  of  property   limited. 
270.  Marshal;  when  liable  to  execution. 

277.  Return   of  execution   and   satisfaction   of  judgment. 

Note. —  The  word  "Removal,"'  in  above  contents,  section  273,  should 
be  "  Renewal."     See  §  273. 

§260.  How  issued. —  An  execution  may  be  issued  on  a 
judgment  of  the  municipal  court  at  the  option  of  the  judg- 
ment creditor,  either  by  the  county  clerk  directed  to  the 
sheriff  as  prescribed  by  law,  after  the  filing  of  a  transcript. 
of  judgment,  as  provided  in  the  next  section,  or  by  the  clerk 
of  the  municipal  court  in  the  district  in  which  the  judgment 
was  entered,  within  six  years  thereafter,  directed  to  a  mar- 
shal. But  no  execution  shall  issue  out  of  the  municipal  court 
after  a  transcript  has  been  issued,  and  no  transcript  shall  be 
issued  while  an  execution  of  the  municipal  court  remains 
unreturned,  except  a  transcript  showing  that  a  judgment 
has  been  vacated,  set  aside  or  modified. 

Notes  to  section  260. 

This  section  is  taken  from  section  1392  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  by  which  a  judgment  creditor  had  his  option 


358  Execution.  §261. 

after  the  filing  of  a  transcript  to  issue  execution  either  to  the  sheriff 
or  to  a  marshal.  By  the  presen)  section  no  execution  can  be  issued  to 
a  marshal  after  the  filing  <>f  a  transcript,  and  no  transcript  can  be 
issued  by  the  clerk  while  a  marshal  has  an  execution. 

Section  1392  of  the  Consolidation  Act  (  Laws  1882,  chap.  410 1  did  not 
contain  any  time  within  which  an  execution  could  be  issued.  Provision 
is  now  made  that  it  may  he  issued  within  six  years  after  the  judgment 
was  entered  in  accordance  with  the  decision  in  Diffenbach  v.  Roch,  11- 
N.  Y.  621  -,  Herman  v.  Stalp,  24  X.  Y.  St.  Rep.  4U.  And  see  Herder  v. 
Qollyer,  6  X.  V.  Supp.  513. 

Action  to  foreclose  a  lien  upon  a  chattel. —  Execution  againsl  the 
person  in  such  an  action  shall  not  issue  if  the  provisions  of  tin-,  act  re- 
lating to  the  indorsement  upon  the  summons  (s§  38,  39)  have  not  been 
complied  with,  and  the  marshal  must  make  a  return  that  the  property 
is  not  available  for  levy  and  execution.     See  §   140  of  this  ait. 

Execution  issued  on  the  day  of,  but  after  the  debtor's  death  held 
void;  the  law  takes  notice  of  fractions  of  a  day  when  there  are  con- 
flicting rights. —  See  §  1380,  Code  Civ.  Proc. ;  Wallace  v.  Swi/nton,  04 
X'.  Y.  188;  Broom's  Legal  Maxim's  134;  1'rcntiss  v.  Bowden,  8  Misc. 
Rep.  420,  28  XT.  Y.  Supp.  666.  See  also  Douglass  v.  tieifert,  18  Misc. 
Rep.  188. 

Id. —  Upon  judgment  for  defendant  when  plaintiff  is  an  executor  or 
administrator.     See  §   156. 

Id.— For  return  of  property,  see  §  118,  this  act. 

Mechanic's  lien  actions. —  Executions  in  such  actions  are  provided  for 
by  section  3408,  Code  of  Civil  Procedure. 

Stipulation  to  issue. —  An  attorney  cannot  issue  an  execution  in  this 
court  under  a  stipulation ;  the  clerk  must  do  so,  otherwise  it  io  invalid. 
Thompson  v.  Jenks,  2  Abb.  Pr.  N.  S.  229. 

Taking  oysters  out  of  the  Harlem  river. —  Executions  upon  recovery 
in  an  action  for  violations  of  law  in  this  respect  are  specially  provided 
for  by  section  770  of  the  Consolidation  Act   (Laws  1882,  chap.  410). 

§  261.  Transcript  how  to  issue;  judgment  of  supreme  court, 
when  docketed. —  The  clerk  of  the  court  in  the  district  in 
which  a  judgment  is  rendered  must,  upon  the  application 
of  the  party  in  whose  favor  the  judgment  was  rendered,  de- 
liver to  him  a  transcript  of  the  judgment,  except  as  provided 
in  the  last  section.  The  county  clerk  of  the  county  in  which 
the  judgment  was  rendered,  must,  upon  the  presentation  of 
the  transcript  and  payment  of  the  fees  therefor,  indorse 
thereupon  the  date  of  its  receipt,  file  it  in  his  office,  and 
docket  the  judgment,  as  of  the  time  of  the  receipt  of  the 


§  201.  Execution.  359 

transcript,  in  a  book  kept  by  him  for  that  purpose,  as  pre- 
scribed by  law,  and  if  the  judgment  be  one  which  is  rendered 
for  the  recovery  of  a  chattel  which  has  been  delivered  to  the 
unsuccessful  party,  or  for  the  value  thereof,  must  also  enter 
in  the  docket  the  particulars  of  the  judgment  as  stated  in 
the  transcript.  Thenceforth  the  judgment  is  deemed  a  judg- 
ment of  the  supreme  court  and  may  be  enforced  accordingly. 
But  nothing  in  this  section  shall  be  construed  to  prevent 
the  municipal  court  from  vacating,  sotting  aside  or  modi- 
fying the  judgment  as  hereinbefore  provided. 

Notes  to  section  261. 

This  section  is  taken  from  section  1392  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  which  was  the  same  as  section  3019,  Code  of 
Civil  Procedure. 

The  change  is  made  to  the  Supreme  Court  on  account  of  the  abolition 
of  the  Court  of  Common  Pleas.  Section  1392  of  the  Consolidation  Act 
made  an  exception  as  to  the  delivery  of  a  transcript  in  an  action  to 
recover  a  chattel,  which  provision  was  embodied  in  section  1394  of 
said  act;  it  is  now  contained  in  this  section,  therefore,  obviating  the 
necessity  of  a  separate  section. 

Amendment  of  judgment  after  filing  transcript. —  The  court  may 
amend  a  judgment,  after  filing  the  transcript  thereof  with  the  county 
clerk,  by  correcting  first  name  of  defendant,  which  was  fictitious,  and 
so  stated  in  the  summons.     Hilton  v.  Sinsheimer,  5  Civ.  Proc.  Rep.  355. 

Effect  of  filing  transcript. —  The  filing  of  a  transcript  of  a  judgment 
does  not  make  it  a  judgment  of  the  Common  Pleas,  now  Supreme  Court, 
for  any  other  purpose  than  for  its  enforcement.  Edel  v.  McCone,  31 
N.  Y.  St.  Rep.  553. 

Irregularity. —  Where  an  execution  issued  upon  a  judgment  docketed 
in  the  county  clerk's  office  was  issued  by  the  plaintiff's  attorney  alone, 
and  not  by  the  county  clerk, —  Held,  that  tne  irregularities  in  the  form 
and  issuance  of  the  execution  were  not  sufficient  to  deprive  the  court 
of  jurisdiction  to  entertain  supplementary  proceedings  founded  thereon. 
Bareither  v.  Brosche,  19  Civ.  Proc.  Rep.  447. 

Mechanic's  lien  actions. —  Transcripts  of  judgment  in  these  actions 
are  provided  for  by  section  3410,  Code  of  Civil  Procedure. 

Plaintiff  only  has  right  to  file  transcript.—  A  judgment  debtor  has 
no  right  to  file  a  transcript  of  a  judgment  recovered  against  him  with 
the  county  clerk,  so  as  to  make  an  application  to  have  such  judgment 
set  off  against  another  in  his  favor.  The  Code  provides  that  the  clerk 
shall  issue  a  transcript  of  a  judgment  to  the  party  in  whose  favor  the 
judgment  was  rendered;   the  transcript  so  issued,   and  none  other,   is 


360  Execution.  §§262,263. 

the  only  one  to  be  filed  with  the  county  clerk.     Cunningham  v.  Eiseman, 
4  Civ.  Proc.   Rep.  220. 

62.  When  satisfaction  of  judgment  presumed. —  A  final 
judgment  for  a  stun  of  money,  or  directing  the  payment  of 
a  sum  of  money,  heretofore  or  hereafter  rendered,  and 
docketed  in  the  office  of  a  county  clerk  as  prescribed  in  this 
article,  is  presumed  to  be  paid  and  satisfied  after  the  expira- 
tion of  twenty  years  from  the  time,  when  the  party  recover- 
ing it  was  first  entitled  to  a  mandate  to  enforce  it.  This 
presumption  is  conclusive,  except  as  against  a  person  who, 
within  twenty  years  from  that  time,  makes  a  payment  or 
acknowledges  an  indebtedness  of  some  part  of  the  amount 
recovered  by  the  judgment  or  decree,  or  his  heir  or  personal 
representative,  or  a  person  whom  he  otherwise  represents. 
Such  an  acknowledgment  must  be  in  writing,  and  signed  by 
the  person  to  be  charged  thereby. 

Note  to  section  262. 

This  section  is  taken  from  section  376  of  the  Code  of  Civil  Procedure. 
It  and  the  following  one  were  made  necessary  in  consequence  of  the 
decision  in  Dieffenbach  v.  Roch,  112  N.  Y.  621,  holding  that  prior  to  1894 
a  judgment  of  this  court,  even  though  docketed  by  the  filing  of  a  tran- 
script, was  only  ^ood  for  six  years.  By  chapter  307,  Laws  1894,  such 
judgments,  when  docketed,  were  made  good  for  twenty  years.  See  also- 
§§  376,  382,  and  3017,  Code  Civ.  Proc,  and  the  case  of  Raphael  v. 
Mencke,  28  App.  Div.  91,  holding  that  chapter  307,  Laws  1894,  amending 
sections  .",76,  382,  and  3017  of  said  Code  made  the  twenty  years  statute 
of  limitations,  with  its  persumption  of  payment,  apply  to  judgments  in 
this  and  justices'  courts,  the  same  as  to  judgments  of  courts  of  record. 

§  263.  Real  property  bound  for  ten  years  by  a  judgment  thus 
docketed* — -  Except  as  otherwise  specially  prescribed  by  law, 
a  judgment,  hereinafter  rendered,  which  is  docketed  in  a 
county  clerk's  office,  as  prescribed  in  this  article  where  it 
is  for  the  sum  of  twenty-five  dollars  or  more,  binds,  and  is  a 
charge  upon,  for  ten  years  after  the  filing  the  judgment  roll, 
and  no  longer,  the  real  property  and  chattels  real,  in  that 
county,  which  the  judgment  debtor  has,  at  the  time  of  so 
docketing  it,  or  which  he  acquires  at  any  time  afterwards,, 
and  within  ten  years. 


§  264.  Execution.  361 

Notes  to  section  263. 

This  section  is  taken  from  section  1251  of  the  Code  of  Civil  Pro- 
cedure, and  the  latter  part  of  section  1392  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  with  the  words,  "where  it  is  for  the  sum  of 
twenty-five  dollars  or  more,"  added.     See  note  to  §  202. 

Section  1403  of  the  Consolidation  Act  (Laws  1882,  chap.  410)  made 
section  3043  of  the  Code  of  Civil  Procedure,  relating  to  justices'  courts, 
applicable  to  this  court,  and  it  is  also  included  in  section  2G3. 

Amount  less  than  $25. —  A  transcript  of  a  judgment,  though  for  less 
than  $25,  may  be  docketed  with  the  county  clerk,  and  becomes  a  judg- 
ment of  the  County  Court,  which  can  be  enforced  like  other  judgments, 
except  it  is  not  a  lien  on  real  property.  Candec  v.  (Jundclslicimer,  8 
Abb.  Pr.  43.K 

Judgments  against  persons  sued  by  a  fictitious  name. —  By  chap- 
ter 318,  Laws  15)02,  section  1251,  Code  of  Civil  Procedure,  was  amended 
to  take  effect  the  same  day  this  act  takes  effect,  viz.:  September  1, 
1902,  by  adding  thereto  alter  the  words,  "  and  within  ten  years,"  as 
follows:  "Except  that  any  judgment  rendered,  having  the  name,  or 
any  part  of  the  name,  of  the  judgment  debtor  designated  as  fictitious, 
shall  not  bind,  or  be  a  charge  upon  the  real  property  or  chattels 
real  of  any  person.  A  judgment  having  the  name,  or  any  part  of  the 
name,  of  a  judgment  debtor  designated  as  fictitious,  may  be  amended 
at  any  time  within  ten  years  after  the  docketing  thereof,  by  inserting 
the  true  name  of  said  judgment  debtor,  upon  such  notice  to  him  as  the 
court  may  direct,  and  such  judgment  shall  thereafter  be  a  lien  upon 
the  real  property  and  chattels  real,  which  the  judgment  debtor  then 
has,  or  may  thereafter  acquire,  but  not  for  a  longer  period  than  ten 
years. after  the  original  docketing  of  such  judgment." 

§  264.  Judgment,  and  effect  of,  against  defendants  jointly 
indebted  when  all  are  not  served — .  In  an  action,  wherein  the 
complaint  demands  judgment  for  a  sum  of  money  against 
two  or  more  defendants,  alleged  to  be  jointly  indebted  upon 
contract,  if  the  summons  is  served  upon  one  or  more,  but 
not  all  of  the  defendants,  the  plaintiff  may  proceed  against 
the  defendant  or  defendants,  upon  whom  it  is  served  unless 
the  court  otherwise  directs;  and,  if  he  recovers  final  judg- 
ment, it  may  be  taken  against  all  the  defendants  thus  jointly 
indebted.  Such  a  judgment  is  conclusive  evidence  of  the 
liability  of  each  defendant  upon  whom  the  summons  was 
personally  served  or  who  appeared  in  the  action,  and  as 
against  a  defendant  not  summoned,  it  is  evidence  only  of  the 


362  Execution.  §§  265, 2G6. 

extent  of  the  plaintiff's  demand,  after  the  liability  of  that 
defendant  lias  been  established,   by  other  evidence. 

Notes  to  section  264. 
This  section,  together  with  sections  265,  266,  267,  and  268,  applicable 
to   courts   of    record,   are   taken    from    section--    1394,    1395,   and    1396    of 

the  Consolidation  Ac:  (Laws  1882,  chap.  410),  and  from  the  sections 
of  the  Code  of  Civil  Procedure  therein  referred  to.  It  combines  sections 
1932  and  1933  of  said  Code,  applicable  to  courts  of  record. 

Parties,  who  may  be  joined.  Parties-plaintiff,  or  defendant. —  See 
§  42. 

Application  of  this  article  to  defendants  jointly  liable. —  (There  is  no 
"•article."  it  is  title  II,  "Actions;   Summons;   Parties).     See  §  43. 

Partners. —  Judgment  in  an  action  against  copartners  is  properly 
rendered  against  all  of  them  although  they  were  not  all  served  with 
summons.  Steiger  v.  Theiss,  1!)  ^\Iisc.  Pep.  170.  See  also  Kramer  v. 
Schatzkin,  27  Misc.  Rep.  206,  57  N.  Y.  Supp.  803,  29  Civ.  Proc.  Rep.  86. 

§  2G5.  Execution;  indorsement  thereupon. —  An  execution 
or  a  transcript  issued  upon  such  a  judgment,  as  prescribed 
in  the  foregoing-  section,  must  be  issued,  in  form,  against  all 
the  defendants;  and  the  clerk  of  the  court  in  the  district 
where  such  judgment  is  entered,  must  indorse  thereupon  the 
name  of  each  defendant  who  was  not  summoned.  If  the 
execution  be  issued  to  the  sheriff  upon  a  judgment  docketed 
in  the  office  of  the  county  clerk  there  must  be  indorsed 
thereupon  a  direction  to  the  sheriff,  containing  the  name  of 
each  defendant  who  was  not  summoned,  and  restricting  the 
enforcement  of  the  execution,  as  prescribed  in  the  next 
section. 

Note  to  section  265. 

This  section  is  taken  from  section  1395  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  which  made  section  1934  of  the  Code  of  Civil 
Procedure  applicable  to  this  court,  substituting  the  duty  of  the  attorney 
for  the  judgment  debtor,  to  the  clerk  of  the  court,  to  indorse  on  the 
judgment  the  name  of  each  defendant  not  summoned.  See  also  notes  to 
§  264. 

§  266.  How  collected. —  An  execution  against  the  person, 
issued  upon  a  judgment,  as  prescribed  in  section  264  of  this 
act,  shall  not  be  enforced  against  the  person  of  a  defendant, 


§§  267,  268.  Execution.  363 

whose  name  is  indorsed  thereupon,  as  not  summoned,  as  pre- 
scribed in  the  foregoing  section.  An  execution  against 
property,  issued  upon  such  a  judgment,  shall  not  be  levied 
upon  the  sole  property  of  a  defendant  not  summoned;  but  it 
may  be  collected  out  of  personal  property,  owned  by  him, 
jointly  with  the  other  defendants,  who  were  summoned,  or 
with  any  of  them;  and  out  of  the  real  and  personal  property 
of  the  latter,  or  any  of  them. 

Notes  to  section  266. 

This  section  is  taken  from  section  1395  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  which  made  section  1935  of  the  Code  of  Civil 
Procedure  applicable  to  this  court,  and  is  substantially  the  same  as 
the  latter. 

See  also  notes  to  §  264. 

§  267.  Judgment  how  docketed;  effect  of  docketing. —  Where 
a  judgment  has  been  taken,  as  prescribed  in  section  two 
hundred  and  sixty-four  of  this  act,  the  clerk  of  the  court  in 
the  district  in  which  the  judgment  is  entered,  must  write 
upon  his  docket,  and  the  county  clerk  with  whom  a  transcript 
is  filed,  as  provided  in  this  act,  must  write  upon  his  docket, 
opposite  or  under  the  name  of  each  defendant,  upon  whom 
the  summons  was  not  served,  the  words  "  not  summoned." 
The  judgment  does  not,  by  virtue  of  its  being  docketed,  bind 
any  real  property,  or  chattel  real,  owned  by  such  a  defend- 
ant. But  this  section  does  not  affect  the  plaintiff's  right  of 
action,  to  charge  the  judgment  upon  any  real  property. 

Notes  to  section  267. 

This  section  is  taken  from  sections  1398  and  1400  of  the  Consolidation 
Act  (Laws  1882,  chap.  410),  the  former  of  which  made  section  1936 
of  the  Code  of  Civil  Procedure  applicable  to  this  court,  adding  the 
provision  requiring  the  clerk  of  this  court  to  docket  the  judgment. 

See  also  notes  to  §  264. 

§  268.  Action  against  joint  debtors. —  After  the  recovery 
of  a  judgment  against  joint  debtors,  as  prescribed  in  section 
two  hundred  and  sixty-four  of  this  act,  an  action  may  be 
maintained  by  the  judgment  creditor,  against  one  or  more 


004-  Execution.  §  269. 

of  the  defendants  who  were  not  summoned  in  the  original 
action,  to  procure  a  judgment  charging  his  or  their  property 
with  the  sum  remaining  unpaid  upon  the  original  judgment. 

Notes   to   section   268. 

This  section  is  taken  from  section  1396  of  the  Consolidation  Act 
(Laws  L882,  chap.  410),  which  made  section  1937  of  the  Code  of  Civil 
Procedure  applicable  to  this  court,  and  this  section  is  substantially  the 
same  as  the  latter. 

See   also  notes  to   §   2G4. 

Action  in  any  court. —  The  defendant  not  summoned  may  be  sued  in 
any  court  having  jurisdiction  of  the  action.  Johnson  v.  Smith,  14  Abb. 
Pr.  421  ;   F ride  man  v.  Kennedy,  4  Abb.  N.  S.  417. 

Judgment;  partners. —  A  summons  issued  in  1892  against  defendant 
and  his  partner  was  served  on  the  latter  alone,  and  judgment  was 
taken  against  both,  and  against  the  partner  personally,  and  in  1898, 
before  the  statute  expired,  an  action  was  brought  against  the  partner 
as  sole  defendant,  under  a  second  judgment  taken  against  him.  Held,  in 
an  action  thereafter  against  defendant  alone,  to  charge  him  under 
the  Code  of  Civil  Procedure,  section  1937,  that  he  could  not  avail  him- 
self of  the  statute  under  section  1939,  since  that  defense  did  not  exist 
when  the  first  action  was  broug-it,  the  provisions  of  the  Code  having 
been  made  applicable  to  this  court  by  section  1396  of  the  Consolidation 
Act,  and  section  1369  of  the  Charter  of  1897.  Kramer  v.  Schatzkin, 
27  Misc.  Rep.  206,  57  N.  Y.  Supp.  803,  29  Civ.  Proc.  Rep.  86. 

§  269.  Docketing  judgment  in  another  county. —  The  county 
clerk  with  whom  a  transcript  is  filed,  as  prescribed  in  this 
act,  must  furnish  to  any  person  applying  therefor,  and  paying 
the  fees  allowed  by  law,  one  or  more  transcripts  of  the  docket 
of  the  judgment,  attested  by  his  signature.  A  county  clerk 
to  whom  such  a  transcript  is  presented,  must,  upon  payment 
of  the  fees  therefor,  immediately  file  it,  and  docket  the 
judgment  in  the  appropriate  docket-book  kept  in  his  office, 
in  like  manner  as  the  judgment  was  docketed  by  the  first 
county  clerk.  The  judgment,  when  docketed,  as  prescribed 
in  this  section,  has  the  like  effect,  with  respect  to  the  enforce- 
ment thereof,  or  any  proceedings  thereunder,  or  by  virtue 
thereof,  in  the  county  where  it  was  so  docketed,  as  it  has  in 
the  county  in  which  it  was  docketed  upon  the  transcript  from 
the  municipal  court. 


§§  270,  271.  Execution.  365 

Notes  to  section  269. 

This  section  is  taken  from,  and  is  substantially  the  same  as  section 
1397  of  the  Consolidation  Act  (Laws  1882,  chap.  410),  which  was  the 
same  as  section  3022  of  the  Code  of  Civil  Procedure. 

Transcript. —  To  make  the  judgment  enforceable  in  any  other  county 
within  the  city,  a  transcript  must  first  be  docketed  in  the  county  in 
which  it  was  rendered,  and  a  transcript  of  the  latter  judgment  be 
filed  and  docketed  in  the  county  where  it  is  going  to  be  enforced,  the 
clerk  of  the  last-mentioned  county  issuing  the  execution.  Matter  of 
Stumpp,  32  Misc.  Eep.  41,  06  N.  Y.  Supp.  172. 

§  270.  Judgment  against  marshal. —  Whenever  any  judg- 
ment shall  be  rendered  against  any  city  marshal  or  his 
sureties,  in  any  district  of  the  municipal  court,  a  transcript 
thereof  shall  be  filed  with  the  county  clerk  in  the  county 
wherein  such  district  of  the  municipal  court  is  situated,  and 
from  the  filing  of  such  transcript  such  judgment  shall  be 
deemed  to  be  a  judgment  of  the  supreme  court  and  shall  be 
enforced  in  the  same  manner  as  other  judgments  of  that 
court.  And  no  execution  on  such  judgment  shall  issue  to 
any  other  officer,  than  the  sheriff,  and  all  such  executions 
must  be  made  returnable  to  the  county  clerk 

Notes  to  section  270. 

This   section   is   taken   from   section    1398   of   the   Consolidation   Act 
(Laws  1882,  chap.  410). 
The  word  "'  district  "  means  judicial  district. 
Return  of  execution. —  (See  Bartels  v.  Cunningham,  8  Abb.  N.  C.  226. 

§  271.  Execution;  requisites. —  The  execution,  when  issued 
out  of  the  municipal  court,  must  be  directed  to  a  marshal, 
subscribed  by  the  clerk  of  the  court,  in  the  district  in  which 
the  judgment  was  rendered,  or  by  his  successor  in  office,  and 
must  bear  date  of  the  day  of  its  delivery  to  the  officer  to  be 
executed.  It  must  intelligibly  refer  to  the  judgment  by 
stating  the  names  of  the  parties,  the  district  where,  and  the 
time  when  rendered,  and  the  amount  of  the  judgment,  and 
if  less  than  the  whole  is  due,  the  true  amount  due  thereon; 
it  must  require  of  the  marshal,  substantially  as  follows: 

1.  If  it  be  a  case  where  the  defendant  cannot  be  arrested, 
it  must  direct  the  officer  to  collect  the  amount  of  the  judg- 


3G6  Execution.  §  271. 

mentj  or  the  amount  duo  thereon,  out  of  the  personal  prop- 
erty of  the  debtor,  and  to  pay  the  same  to  the  party  entitled 
thereto. 

2.  If  it  be  a  case  where  the  defendant  may  be  arrested, 
in  addition  to  the  foregoing,  it  may  direct  the  officer,  if 
sufficient  property  of  the  defendant  liable  to  execution  can- 
not be  found  to  satisfy  the  judgment,  that  lie  arrest  the  de- 
fendant and  commit  him  to  the  jail  of  the  county  wherein 
the  district  in  which  the  judgment  was  entered  is  situate, 
until  he  pay  the  judgment  or  be  discharged  accordinc;  to 
law. 

3.  It  must  further,  in  all  cases,  direct  the  officer  to  make 
return  of  the  execution  and  a  certificate  thereon  showing 
the  manner  in  which  he  had  executed  the  same,  in  twenty 
days  from  the  time  of  his  receipt  thereof,  to  the  court  from 
which  the  execution  issued. 

Notes  to  section  271. 

This  section  is  substantially  the  same  as  section  1399  of  the  Conr 
solidation  Act  (Laws  1882,  chap.  410),  which  was  the  same  as  section 
52,  chapter  344,  Laws  1857. 

Section  1403  of  the  Consolidation  Act  (Laws  1882,  chap.  410)  made 
section  3024  of  the  Code  of  Civil  Procedure,  relating  to  justices' 
courts,  applicable  to  this  court.  The  latter  section  prescribes  the 
time  within  which  an  execution  may  be  issued  by  the  justice,  and 
is  substantially  covered  by  the  present  section,  subdivision  3. 

See  also  §  272,  and  notes. 

Attachment. —  As  to  execution  where  property  has  been  attached,  see 
§  91. 

Causes  of  action  united;  arrest. —  Where  a  cause  of  action  for  which 
a  defendant  might  be  arrested  is  united  with  a  cause  of  action  for 
which  he  cannot  be  arrested,  an  execution  against  the  person  of  the 
defendant  cannot  be  issued  vipon  the  judgment.     See  §  1 40,  subd.  G. 

Description. —  The  debtor  must  be  correctly  described  by  the  judg- 
ment and  execution.  The  marshal  can  only  execute  the  process  against 
the  property  of  the  person  named  therein.  It  is  not  enough  that  the 
right  person  be  made  to  pay  the  debt.  Farnham  v.  Hildreth,  32  Barb. 
277. 

Id.;  execution  against  the  person. —  An  execution  against  the  body 
of  the  defendant  must  state  in  the  judgment  and  the  docket  that  the 
case  is  one  in  which  the  defendant  is  subject  to  arrest  and  imprisonment. 


§  272.  Execution.  307 

Carpentier  v.  WiMett,  IS  How.  Pr.  400;  s.  c,  G  Bosw.  25;  less  fully 
reported,  s.  c.,  31  N.  Y.  90,  atfg.  G  Bosw.  25,  28  How.  225. 

Exemption  of  property  from  levy  and  sale  under  execution.  See 
§§  1389  to  1404,  inclusive.  Code  Civ.  Proc. 

Levy  upon  personal  property,  when  superseded  by  appeal. —  See  §  1311, 
Code  Civ.  Proe.,  and  notes  to  §  31G. 

Marshal's  return  is  presumptive  evidence  in  an  action  against  sure- 
ties.   See  §  127. 

Mechanic's  lien  actions. —  Execution  may  be  issued  upon  a  judgment 
obtained  in  an  action  to  enforce  a  mechanic's  lien  against  real  property 
in  a  court  not  of  record,  which  shall  direct  the  officer  to  sell  the  title 
and  interest  of  the  owner  in  the  premises,  upon  which  the  lien  set  forth 
in  the  complaint  existed  at  the  time  of  filing  the  notice  of  lien.  Code 
Civ.  Proc,  §  3048. 

Replevin.— Contents  of  executions  in  action  in  replevin.  See  §  124 
and  notes. 

Sale  on  execution.  — When  and  how  conducted.     See  §  1384,  Code  Civ. 

Proc. 

Id.;   notice  of,  penalty  for  tearing  down,  or  defacing.—  !  1385,  Code 

Civ.   Proc. 

Id.;  purchases  on  such  sales  by  certain  officers  prohibited. —  §  1387, 
Code  Civ.  Proc. 

Id.;  validity  of  sale  when  not  affected  by  marshal's  default.— 
§  1386,  Code  Civ.  Proc. 

Trespass  of  marshal;  judgment  creditor.— A  judgment  creditor  is 
not  liable  for  the  trespass  of  the  marshal  in  making  a  wrongful  levy, 
unless  he  aided,  abetted,  directed,  or  took  some  part  therein.  Fischer  v. 
Hetherington,  11  Misc.  Kep.  575. 

§  272.  Arrest. — When  the  execution  directs  the  arrest  of 
the  defendant  for  want  of  sufficient  personal  property,  if 
there  be  not  sufficient  subject  to  levy  known  to  the  officer, 
or  if  upon  demand  by  the  officer  of  the  defendant,  he  fail 
to  produce  sufficient  property,  the  officer  may,  without  fur- 
ther delay,  arrest  the  defendant;  when  arrested,  the  de- 
fendant must  be  conveyed  to  the  common  jail  of  the  county, 
wherein  the  district  where  the  judgment  is  entered  is  situate, 
and  there  kept  in  custody  until  the  execution,  with  costs, 
be  paid,  or  be  discharged  by  due  course  of  law. 

Notes  to  section  272. 

This  section  is  substantially  the  same  as  section  1401  of  the  Con- 
solidation Act  (Laws  1882.  chap.  410),  which  was  the  same  as  section 
54,  chapter  344,  Laws  1857. 


368  Execution.  §§  273,  274. 

See  also  §§  260,  271,  and  notes. 

Action  to  foreclose  a  lien  upon  a  chattel. —  The  marshal  must  make 
a  return  on  the  execution  to  the  clerk  that  the  property  is  not  available 
for  levy  and  execution  before  execution  against  the  person  can  issue. 
§   140. 

§  273.  Renewal  of  execution. —  An  execution  may,  at  the 
request  of  the  judgment  creditor,  be  renewed  before  the 
expiration  of  the  twenty  days  by  the  word  "  renewal  "  being 
written  thereon,  with  the  date  thereon,  subscribed  by  the 
clerk  of  the  court  or  his  assistant;  such  renewal  has  the  same 
effect  as  an  original  issue,  and  may  be  repeated  as  often  as 
may  be  necessary.  If  an  execution  be  returned  unsatisfied, 
others  may  be  issued  on  the  like  request  from  time  to  time 
until  the  judgment  be  satisfied. 

Notes  to  section  273. 

This  section  is  substantially  the  same  as  section  1402  of  the  Con- 
solidation Act  (Laws  1882,  chap.  410).  which  was  the  same  as  section 
55,  chapter  344,  Laws   1  s  .1 7 . 

Section  1403  of  the  Consolidation  Act  made  section  3027  of  the 
Code  of  Civil  Procedure,  relating  to  justices'  courts,  applicable  to  this 
court,  and  it  is  also  included  in  section  273. 

§  274.  Judgment  in  favor  of  wage  earners. —  In  an  action, 
brought  in  the  municipal  court,  by  a  journeyman,  laborer, 
or  other  employee  whose  employment  answered  to  the  gen- 
eral description  of  wage  earner,  for  services  rendered  or 
wages  earned  in  such  capacity,  if  the  plaintiff  recovers  a 
judgment  for  a  sum  not  exceeding  fifty  dollars,  exclusive  of 
costs,  and  the  action  shall  have  been  brought  within  one 
month  after  the  cause  of  action  accrued,  no  property  of  the 
defendant  is  exempt  from  levy  and  sale  by  virtue  of  an 
execution  against  property,  issued  thereupon;  and,  if  such 
an  execution  is  returned  wholly  or  partly  unsatisfied,  the 
clerk  must,  upon  the  application  of  the  plaintiff,  issue  an 
execution  against  the  person  of  the  defendant  for  the  sum 
remaining  uncollected,  if  the  indorsement  required  by  this 
act  to  the  effect  that  defendant  was  liable  to  arrest  was  com- 
plied with.     A  defendant  arrested  by  virtue  of  an  execution 


'§  274.  Execution.  369 

so  issued  against  his  person,  must  be  actually  confined  in  the 
jail,  and  is  not  entitled  to  the  liberties  thereof;  but  he  must 
be  discharged  after  having  been  so  confined  for  fifteen  days. 
After  his  discharge  another  execution  against  his  person 
cannot  be  issued  upon  the  judgment,  but  the  judgment 
creditor  may  enforce  the  judgment  against  property  as  if  the 
execution,  from  which  the  judgment  debtor  is  discharged, 
has  been  returned,  without  his  being  taken. 

Notes  to  section  274. 

This  section  is  taken  from  section  1405  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  which  was  the  same  as  section  3321  of  the 
Code  of  Civil  Procedure. 

The  Commissioners  of  Revision,  in  a  note  to  this  section,  say  that  it 
■"  is  substantially  the  same  as  section  1405  of  the  Consolidation  Act, 
the  only  change  being  that  the  words  '  if  the  indorsement  required  by 
this  act  to  the  effect  that  defendant  was  liable  to  arrest  was  complied 
with,'  are  added  after  the  words  '  remaining  uncollected.'  " 

A  comparison  will  show  that  this  is  incorrect.  Section  1405  related 
only  to  a  "working  woman,''  as  expressed  in  the  title,  and  in  the 
text  to  "a  female  to  recover  for  services  performed  by  her,"  whereas 
by  section  274  the  expression  is  "  a  journeyman,  laborer,  or  other  em- 
ployee whose  employment  answered  to  the  general  description  of  wage- 
earner  for  services  rendered,  or  wages  earned  in  such  capacity."  No 
such  words,  or  expression,  are  found  in  section  1405,  and  it  is  obvious 
that  male  as  well  as  female  have  been  included.  The  section  then  pro- 
ceeds to  require  not  only  that  a  judgment  for  a  sum  not  exceeding 
$50  shall  be  recovered,  and  that  "  the  indorsement  required  by  this 
act  (§  39),  to  the  effect  that  defendant  was  liable  to  arrest,  was 
complied  with,  but  also,  that  "  the  action  shall  have  been  brought  loithin 
one  month  after  the  cause  of  action  accrued.,,  No  limitation  whatever 
as  to  when  the  action  must  be  brought  is  contained  in  section  1405, 
therefore  this  is  another  change,  and  a  most  radical  one. 

The  wage-earner  "  had  six  years  to  sue  on  his  contract  with  his 
employer,  and  obtain  the  benefits  of  a  judgment  and  execution  for 
arrest."  Now  he  is  limited  to  one  month.  It  is  the  shortest  statute 
of  limitation  in  which  to  commence  an  action  ever  enacted. 

Action  by  employee. —  See  §  44,  "  Where  employee  is  a  party." 

Amount  less  than  $50. —  The  issue  of  an  execution  against  the  per- 
son, on  a  judgment  obtained  by  a  female  for  services  less  than  $30, 
Under  section  1405  of  the  Consolidation  Act,  after  a  return  of  execution 
against  property  unsatisfied,  cannot  be  issued  unless  the  judgment  ami 
docket  contains  a  statement  that  defendant  is  subject  to  arrest  and 
imprisonment   as   provided   in   section    1386,   the   duty   of   the   clerk   in 

24 


370  Execution.  §§  275,  276- 

issuing  the  execution  being  purely  ministerial.  People  ex  rel. 
Rosenzweig  v.  Costigan,  54  App.  Div.  186. 

Costs  in  action  by  working  woman. —  See   §  340. 

Marshal  must  discharge  party  imprisoned  under  execution  after  fif- 
teen days1  confinement.     Padreshefsky  v.   Walton,  65  App.  Div.  432. 

Nurse. —  Where  services  are  rendered  by  a  woman  as  a  nurse  in  a 
family,  she  is  entitled  t  >  the  benefit  of  this  section,  but  she  cannot  have 
$10  extra  costs  under  sections  3222  and  3131  of  the  Code  of  Civil 
Procedure.     Dillon  v.  Porter,  12  Week.  Dig.  207. 

Statement  in  judgment. —  Under  sections  1383  and  1405  of  the  Con- 
solidation Act,  a  female  having  a  judgment  for  less  than  $50.  rendered 
for  services,  execution  on  which  has  been  returned  unsatislied,  cannot 
have  execution  issue  against  the  person  of  the  judgment  debtor,  unless 
the  justice  has  caused  to  be  inserted  in  the  juagment  a  statement  that 
defendant  is  subject  to  arrest.  Matter  of  Rosenzweig,  66  N.  Y.  Supp. 
376. 

§  275.  Arrest  and  sale  of  property  limited. —  A  defendant 
cannot  be  arrested  nor  his  property  sold  on  execution  after 
twenty  days  from  its  issue  or  renewal,  but  property  levied  on 
within  the  twenty  days,  may  be  sold  after  renewal. 

Note  to  section  275. 

This  section  is  the  same  as  section  1406  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  which  is  the  same  as  section  56,  chapter  344, 
Laws  1857. 

§276.  Marshal;    when   liable    to    execution;    creditor. —  A 

marshal  is  liable  to  a  party  in  whose  favor  an  execution  is 
issued  to  him  for  the  amount  thereof  in  the  following  cases : 

1.  Where  he  suffers  the  twenty  days  to  elapse  without 
making  a  true  return  thereof,  and  filing  the  same  with  the 
clerk  of  the  court,  and  paying  to  him  or  to  the  party  entitled 
thereto,  the  money  collected  thereon  by  him. 

2.  Where  he  willfully  or  carelessly  omits  to  levy  on  prop- 
erty of  the  defendant,  or  if  the  defendant  be  liable  to  arrest,, 
to  arrest  and  imprison  him  within  the  twenty  days,  or  having 
arrested  the  defendant,  fails  to  commit  him  to  the  county 
jail  within  the  twenty  days. 

Notes  to  section  276. 

This  section  is  the  same  as  section  1407  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  which  is  the  same  as  Laws  1857,  chap.  344, 
§  57. 


§276.  Execution.  371 

As  to  "marshals,"  generally,  see  tit.  VIII,  art.  11,  §S  293  to  306;  as 
to  "  marshals"  fees,"  see  SS  354  and  350;  under  the  latter  section  the 
marshals'  "  fees  "  and  "  expenses  "  are  tabulated. 

Agreement  with  debtor. — A  marshal  to  whom  an  execution  had  been 
duly  delivered  made  an  agreement  with  the  judgnu.it  debtor  without 
the  knowledge  or  consent  of  the  judgment  creditor  or  his  attorney,  a 
day  or  two  before  the  execution  was  returnable,  to  await  payment  one 
week,  and  on  the  return  day,  at  his  own  instance,  procured  from  the 
clerk  of  the  court  a  renewal  of  the  execution,  and  afterward  returned 
the  execution  unsatisfied,  the  judgment  debtor  having,  after  the  re- 
newal, left  for  parts  unknown.  Held,  that  the  marshal  was  liable  to 
the  judgment  debtor  for  such  damages  as  the  latter  had  sustained  by 
reason  of  the  neglect  of  duty  by  the  marshal.  McGuire  v.  Baushcr,  52 
App.  Div.  270,  05  N.  Y.  Supp.  382. 

Defendant,  to  whom  an  execution  was  delivered  as  marshal,  extended 
the  judgment  debtor's  time  for  payment  beyond  the  time  specified 
therein,  and,  without  consultation  with  the  judgment  creditor,  procured 
its  renewal,  and  finally  returned  it  unsatisfied,  and  the  attorney  for  the 
creditor  testified  that  on  the  day  execution  issued  he  saw  the  judgment 
debtors  in  possession  of  property  more  than  sufficient  to  satisfy  it, 
which  he  told  witness  belonged'  to  him.  Held,  that  the  evidence  was 
sufficient  to  establish  a  claim  for  damages  by  reason  of  defendant's  re- 
newal of  the  execution.  McGuire  v.  Bausher,  57  App.  Div.  201,  08  X. 
Y.  Supp.  284. 

Contempt;  error  or  mistake  of  marshal. —  Misbehavior  in  office,  Avill- 
ful  neglect  of  duty,  and  disobedience  to  a  lawful  mandate  of  the  court, 
all  imply  bad  faith  and  not  a  simple  mistake  or  error  of  judgment.  If 
a  party  to  an  action  is  injured  by  a  mistake  of  the  sheriff*  in  the  dis- 
charge of  an  official  duty,  he  can  hold  him  and  his  sureties  liable  in 
damages,  but  cannot  proceed  against  him  as  for  a  contempt.  He  should 
not  be  fined  and  imprisoned  because  he  did  not  correctly  decide  difficult 
and  important  questions  at  law,  in  relation  to  which  learned  counsel 
differ  and  on  which  the  court  may  well  hesitate.  Second  Nat.  Bank  of 
Osicego  v.  Dunn,  03  How.  434. 

Delegation. —  When  an  execution  is  duly  issued  to  a  marshal  it  be- 
comes his  duty  to  execute  it  in  person.  He  has  no  power  to  substitute 
another  marshal  in  his  place.  Downs  v.  M'Glynn,  2  Hilt.  14,  0  Abb. 
Pr.  241. 

Fictitious  name. —  Where  an  attachment  against  the  property  of  a 
person  whose  first  name  appears  on  the  face  thereof  was  fictitious,  such 
attachment  and  all  proceedings  thereunder  are  absolutely  void,  and  a 
marshal  who  executes  such  process  will  be  equally  liable  with  the 
attaching  creditor  in  an  action  for  conversion  of  the  goods  levied  upon; 
and  notwithstanding  the  evidence  clearly  shows  that  the  party  against 
whom  it  was  intended  to  proceed  by  attachment  is  the  owner  of  the 
property  taken.     J'<itrirl:  v.  Solintfer,  9  Daly,  149. 


872  Execution.  J<  276. 

A  levy  upon  goods  of  a  person  served  without  having  properly  speci 
ficd  a   fictitious  name,  under  a  judgment  recovered  in  the  action,  is  a 
trespass.     Fischer  \.  Eetherington,   II    Misc.  Hep.  ."iT."). 

Exemption. —  It  is  not  necessary  to  claim  the  exemption  of  chattels 
levied  on  at  the  time  of  the  levy,  but  notice  to  the  sheriff  at  any  time 
before  actual  sale  is  sufficient,  and  notice  having  been  given,  the  ex- 
emption is  not  waived  by  the  presence  of  the  debtor  at  the  sale  on 
execution  of  the  goods  levied  upon  under  an  attachment,  without  then 
claiming  exemption.     Hart  maun   v.   Wood,  57  App.   Div.  23. 

Indemnity  for  a  levy;  sureties. —  The  acceptance  by  a  marshal  of  a 
sum  of  money  as  indemnity  for  a  levy,  instead  of  an  undertaking,  is 
not  an  act  within  his  official  capacity,  so  as  to  make  the  sureties  on 
bis  bond  liable  on  his  failure  to  return  the  money.  De  Sisto  v.  Stimmcl, 
31  Misc.  Rep.  711.  65  N.  Y.  Supp.  314. 

Insufficient  process. —  The  mere  possession  of  personal  property  by 
an  officer  who  took  it  under  insufficient  process  is  enough  to  sustain 
an  action  against  him.     Obericarth  v.  McLean,  7  Daly.  70. 

Money  not  collected. —  A  constable  does  not  incur  the  statutory 
penalty  of  being  liable  for  the  amount  of  the  execution  by  a  failure  to 
make  and  file  a  return  within  the  twenty  days,  where  he  has  not  col- 
lected any  money  under  the  execution.     Curry  v.  Farley,  8  Daly,  228. 

Property  taken  and  no  return. —  In  an  action  against  a  constable  and 
his  sureties  it  is  proper  to-  join  claims  that  he  took  sufficient  goods  on 
plaintiff's  execution  to  satisfy  it;  that  be  has  failed  to  make  return 
and  keeps  and  detains  the  money.     Moore  v.  Smith,  10  How.  361. 

Protection. —  It  is  well  settled  that  process  regular  and  valid  on  its 
face,  issuing  from  a  court  having  authority  to  issue  it,  and  possessing 
jurisdiction  of  the  subject-matter  to  which  the  process  relates,  protects 
the  ministerial  officer  executing  it.  Imbert  v.  Hallock,  23  How.  Pr. 
456;  Day  v.  Bach,  87  N.  Y.  61.  See  also  Crounsc  v.  Johnson,  47  N.  Y. 
St.  Rep.  559;  s.  c.,  65  Hun,  337. 

Where  a  replevin  process  is  valid  on  its  face,  the  sheriff  has  no  right 
to  look  behind  or  beyond  it.  and  he  will  be  protected  if  he  obeys  it. 
Second  Nat.  Bank  of  Osicego  v.  Dunn,  63  How.  434;  s.  c,  2  Civ.  Proc. 
Rep.  259. 

An  officer,  acting  under  process  apparently  valid,  but  actually  void, 
may  avail  himself  thereof  for  defense  but  not  for  aggression.  Where 
therefore  an  officer,  who.  by  virtue  of  a  process  valid  upon  its  face  but 
void  for  want  of  jurisdiction  in  the  courl  issuing  it.  has  levied  upon  and 
takes  possession  of  property,  brings  an  action  to  recover  the  property 
against  another  officer,  who,  by  virtue  of  process  against  the  owner, 
apparently  valid,  has  taken  it  from  plaintiff's  possession,  the  character 
of  such  possession  is  a  subject  of  inquiry  and  attack,  and  the  invalidity 
of  the  process  tinder  which  plaintiff  acted  may  be  shown;  but  defend- 
ant's process  protects  him,  and  its  validity  cannot  be  assailed.     Plain- 


§  277.  Execution.  373 

tiff's  process  however  and  his  possession  under  it  establish,  prima  facie, 
a  right  of  action.  Clearwater  v.  Brill,  4  Hun,  728;  revd.,  Clearivater 
v.  Brill,  o3  N.  Y.  027. 

A  requisition  upon  the  sheriff  in  an  action  to  recover  the  possession  of 
personal  property  only  protects  him  in  taking  the  property  specified 
1H  m  the  possession  of  the  defendant  named;  where  however  the  actual 
possession  remains  in  the  defendant,  although  there  has  been  a  transfer 
of  title  and  a  constructive  change  of  possession,  the  process  is  a  protec- 
tion.    Bullis  v.  Montgomery,  50  N.  Y.  352. 

Recovering  back  money  paid  to  marshal. —  The  payment  to  a  marshal 
of  money  by  a  wife,  the  owner  of  property,  to  secure  it  from  a  threat- 
ened seizure  under  an  execution  against  her  husband,  is  not  a  voluntary 
payment,  and  can  be  recovered  back  in  an  action  against  the  marshal. 
(\,<uly  v.  Curry,  8  Daly,  59. 

Release. —  The  sheriff  being  once  relieved  from  liability,  the  court 
has  no  power  to  renew  the  liability.     Lewis  v.  Stevens,  93  N.  Y.  57. 

Stranger's  property. —  Where  a  sheriff,  under  a  warrant  of  attach- 
ment, seizes  property  in  the  possession,  and  owned  by,  a  person  other 
than  the  one  against  whose  property  the  warrant  is  issued,  he  is  liable 
in  an  action  of  replevin  to  such  person.     Deutsch  v.  Reilly,  8  Daly,  132. 

Wrong  district. —  Where,  after  levy  of  execution,  the  judgment  is  re- 
versed upon  appeal,  because  an  objection,  taken  at  the  trial,  that  the 
action  was  brought  in  the  wrong  district,  was  overruled,  which  "  is 
cause  only  of  reversal  on  appeal,  and  does  not  otherwise  invalidate  the 
judgment,''  no  action  can  be  maintained  against  the  officer  levying  the 
execution  as  for  a  wrongful  taking  of  the  property  levied  on.  Burrow* 
cliff  v.  Harrison,  9  Daly,  473. 

§  277.  Return  of  execution  and  satisfaction  of  judgment. — 

AY  heiierer  an  execution  has  been  returned  satisfied  in  whole 
or  in  part,  where  a  transcript  of  the  judgment  has  been  filed 
in  the  county  clerk's  office,  a  certificate  thereon,  signed  by 
the  clerk  of  the  court  in  which  the  judgment  was  rendered 
may  be  filed  in  the  office  of  the  clerk  of  the  county,  who 
shall  thereupon  enter  satisfaction  for  the  amount  so  satisfied; 
judgments  docketed  in  these  courts  may  be  satisfied  in  the 
same  manner  as  judgments  docketed  in  courts  of  record. 

Note  to  section  277. 
This   section   is  the  same   as   section   1408   of  the   Consolidation  Act 
(Laws   1882,  chap.  410),  which  is  the  same  as  Laws   1857,  chap.  344, 
§  58.     "  These  courts  "  in  this  section  mean  this  court,  as  there  is  only 
one  court. 

Note. —  There  are  no  sections  from  277  to  282. 


374         Clekks  and  Officees.   Chae.;  ^  1373. 


TITLE  VLTI. 

Article    I.  Clerks  and  officers. 
II.  Marshals. 

ARTICLE  I. 

Clerks  and  Officers. 

Section   282.  Duties  of  clerk. 

283.  To  collect  and  account  for  fees,  et  cetera. 

284.  Docket,  what  to  contain. 

285.  Entries,  how  to  be  made. 

286.  Index. 

2£7.  To  be  delivered  by  clerk  to  his  successor. 

288.  Successor    may    issue    execution    on    former    unsatisfied 

docket. 

289.  Certified  copies;   prima  facie  evidence. 

Notes  to  title  VIII,  article  I. 

The  commissioners  appointed  to  revise  and  codify  the  laws  relating 
to  this  court  by  chapter  218,  Laws  1901,  in  their  report  to  the  Legisla- 
ture, under  the  above  contents,  say  in  a  note,  "  The  provisions  of 
sections  1373  and  1378  of  the  Charter  are  not  included  in  this  act,  but 
are  preserved  as  Charter  enactments." 

Section  1383  of  the  Charter  has  not  been  repealed  or  disposed  of,  and 
is  preserved  as  a  Charter  enactment.  It  relates  to  provisions  for  the 
removal  of  the  clerks,  and  should  have  been  included  in  the  above  note. 

These  three  sections  are  as  follows: 

Clerks  and  assistant  clerks. 

CHARTER,  §  1373.- There  shall  be  in  and  for 
each  district  a  clerk  of  said  court  and  in  each  district 
in  the  boroughs  of  Manhattan,  Brooklyn,  The  Bronx, 
and  the  first  district  of  Queens,  an  assistant  clerk, 
who  shall  be  appointed  by  the  justice  elected  in  said 
district,  as  hereinafter  provided,  and  shall  hold  office 
for  the  terra  of  six  years  from  the  date  of  appoint- 
ment ;  and  before  entering  upon  his  duties  each  such 
clerk  or  assistant  clerk  shall  file  in  the  office  of  the 
comptroller  of  The  City  of  New  York  a  bond  in  the 


Char.,  §  1373.      Clerks  and  Officers.  375 

penal  sum  of  five  thousand  dollars,  conditioned  for 
the  faithful  discharge  of  his  duty  and  the  due  account- 
ing for  and  payment  of  all  money  by  him  received  or 
with  him  deposited  in  any  action  as  such  clerk  tr 
assistant  clerk,  to  be  approved  by  the  said  comptroller 
to  be  indorsed  thereon.  Each  such  clerk  and  assist- 
ant clerk  shall  receive  a  salary  of  three  thousand 
dollars  per  annum,  except  in  the  boroughs  of  Queens 
and  Richmond,  wherein  the  salary  of  the  clerks  and 
assistant  shall  be  two  thousand  dollars  per  annum 
each.  Such  salaries  shall  be  paid  in  equal,  monthly 
installments ;  and  neither  said  clerks  nor  assistant 
clerks  nor  other  employees  of  said  court  shall  receive 
any  fee  or  compensation  whatever  for  their  own  use  for 
any  services  performed  by  them  by  virtue  of  their 
offices  other  than  their  salaries  ;  and  the  duties  of 
such  clerks  and  assistant  clerks  shall  be  the  same  as 
those  now  imposed  by  law  upon  the  clerks  and  assist- 
ant clerks  of  the  district  courts  in  The  City  of  New 
York.  No  such  clerk,  assistant  clerk  or  other  em- 
ployee of  such  courts  shall  hold  any  other  office  or  be 
interested  in  any  other  business,  except  as  permitted 
by  the  next  section,  but  shall  give  their  whole  time  to 
their  respective  duties  and  shall  reside  in  the  borough 
in  which  the  district  for  which  they  are  appointed 
respectively  is  situated.  For  any  breach  of  said  bond 
the  appellate  division  of  the  supreme  court  or  any 
justice  of  the  supreme  court  in  the  judicial  depart- 
ment wherein  the  district  for  which  such  clerk  or 
assistant  clerk  is  appointed  is  situated,  may  order  the 
same   to   be    prosecuted   in  the  name  of  any  person 


370  Clerks  and  Officers.        Char.,  §  1373. 

damaged  by  such  breach.  The  clerks,  assistant  clerks, 
stenographers,  interpreters  and  attendants  of  the  dis- 
trict courts  in  The  City  of  New  York,  and  of  the 
justices'  courts  of  first,  second  and  third  districts  of 
the  city  of  Brooklyn,  who  shall  be  in  office  on  the  first 
day  of  January,  eighteen  hundred  and  ninety-eight, 
shall  continue  until  the  expiration  of  their  respective 
terms,  in  the  like  capacities  as  officers  of  the  said 
municipal  court.  Each  justice  upon  appointing  a 
clerk  or  assistant  clerk  shall  make  duplicate  certifi- 
cates of  such  appointments,  stating  the  term  of  the 
appointment  and  when  it  will  expire,  and  one  of  such 
duplicates  shall  be  filed  by  him  in  the  office  of  the 
city  clerk,  and  the  other  with  the  secretary  of  the 
board  of  justices  provided  for  in  the  next  section. 
The  said  justices  shall  in  like  manner  also  appoint  the 
officers  necessary  to  attend  the  court  in  each  district, 
not  exceeding  three,  at  an  annual  salary  of  one 
thousand  dollars,  and  a  stenographer '  in  and  for  each 
district  at  an  annual  salary  of  two  thousand  dollars, 
and  in  and  for  each  district  in  the  boroughs  of  Man 
hattan  and  Brooklyn  an  interpreter  at  an  annual  salary 
of  twelve  hundred  dollars.  Each  of  said  attendants, 
stenographers  and  interpreters  shall  be  appointed  for 
two  years  or  to  fill  the  residue  of  an  unexpired  term. 
The  said  justices  may  remove  any  of  said  attendants, 
stenographers  or  interpreters,  provided  that  before 
removal  such  officers  shall  have  notice  of  the  cause  of 
their  proposed  removal  and  an  opportunity  to  make 
an  explanation ;  and  the  reasons  for  any  removal  shall 
be  briefly  entered  on  such  minutes. 


Char.,  §  1373.      Clerks  and  Officers.  377 

Notes  to  Charter  section   1373. 

This  section  is  taken  from  the  Consolidation  Act  (Laws  1882,  chap. 
410),   §§    1427,   1429,   1430,   1432,  and  1434. 

Section  1427  was  superseded  by  section  1373  of  the  Charter  of  1897 
(Laws  1897,  chap.  378). 

Section  1373  was  amended  by  Laws  1899,  chapter  G99,  so  as  to  in- 
clude an  interpreter  for  each  district  in  the  borough  of  Brooklyn. 

Section  1429  was  repealed  by  Laws  1902,  chapter  580,  and  now  con- 
stitutes section  283  of  this  act. 

Sections  1430,  1432,  and  1434  were  also  superseded  by  section  1373  of 
the  Charter  (Laws  1901,  chap.  466),  which  latter  has  been  left  unre- 
pealed. 

Appointment. —  The  power  conferred  by  the  Charter  section  1351 
upon  justices  elected  or  appointed  pursuant  to  the  act  to  appoint  clerks 
of  their  courts  for  the  term  of  six  years  does  not  apply  to  an  existing 
justice  of  the  peace  in  Brooklyn  who  is  transferred  by  the  act  into  this 
court.  Stuber  v.  Coler,  164  N.  Y.  22,  58  N.  Y.  St.  Rep.  17,  revg.  49 
App.  Div.  88,  63  N.  Y.  Supp.  723. 

Assistant  clerk  can  hold  two  civil  offices  simultaneously. —  Gilchrist 
v.  Murray,  73  N.  Y.  535,  revg.  8  Daly,  347. 

Id.;  no  second  assistant  clerk. —  The  effect  of  the  adoption  of  the 
Charter  of  1897  was  to  authorize  the  retention  of  a  clerk  and  an  assist- 
ant clerk  of  each  of  the  former  district  civil  courts  of  Brooklyn;  and 
all  other  clerkships  in  connection  therewith  were  abolished,  and  a 
second  assistant  clerk,  though  a  veteran,  has  no  right  to  a  mandamus 
retaining  him  in  office.  People  ex  rel.  Joyce  v.  Van  Wart,  36  App.  Div. 
518,  55  N.  Y.  Supp.  68;  aft'd.,  without  opinion,  in  158  N.  Y.  721. 

Attendant. —  Definition  of  "  term,"  as  applied  to  term  of  office. 
See  People  ex  rel.  Batcy  v.  Tierney,  31  App.  Div.  309. 

Constitutionality  of,  was  questioned  in  Green  v.  The  Mayor,  etc.,  5 
Abb.  507,  upon  the  ground  that  it  violated  the  provisions  of  the  Consti- 
tution which  give  the  election  or  appointment  of  the  clerks  to  the 
people,  or  to  the  local  authorities. 

Definition  of  the  word  "  clerk."—  See  §  360,  subd.  3,  and  §  3343,  subd. 
4,  Code  Civ.  Proc. 

Interpreter. —  It  is  now  settled  that  in  order  to  become  entitled  to 
salary  as  an  interpreter,  he  must  be  able  to  speak  at  least  two  languages. 
Conroy  v.  The  Mayor,  6  Daly,  49;  affd.,  67  N.  Y.  610. 

Id.;  not  an  officer  of  the  city  government. —  The  interpreter  of  a 
District  Court  is  an  officer  of  the  court  and  not  an  officer  of  the  city 
government,  and  he  is  not  prohibited  from  holding  two  offices  at  the 
same  time.     Goettman  v.  The  Mayor,  6  Hun,  132. 

Id.;  can  hold  two  civil  offices  simultaneously. —  See  cases  cited  under 
§  1549  of  the  Charter,  p.  871.     Second  edition  Charter  by  Ash,  1901. 


378  Clekks  am)  Officers.        CiiAi:.,  §  i:>73. 

Janitor  not  an  officer. —  A  janitor  of  a  District  Court  in  the  city  of 
New  York  is  not  an  officer  but  an  employee  under  the  city  government. 
Sullivan  v.  The  Mayor,  48  How.  238. 

Member  of  Assembly  may  be  appointed  clerk. —  Article  3  of  section 
7  of  tlie  Constitution  of  the  State  of  New  York,  which  provides  that 
'  No  member  of  the  Legislature  shall  receive  any  civil  appointment 
within  this  State,  or  the  Senate  of  the  United  States,  from  the  Governor, 
the  Governor  and  Senate,  or  from  the  Legislature,  or  from  any  city  gov- 
ernment, dining  the  time  for  which  he  shall  have  been  elected,  and  all 
such  appointments  and  all  votes  given  tor  any  such  member  for  any 
such  office  or  appointment  shall  be  void,"  does  not  render  invalid  an 
appointment  by  a  justice  of  a  member  of  assembly  to  a  clerkship  — 
such  a  justice  not  being  an  officer  of  the  city  government.  Stewart  v. 
Mayor,  etc.,  15  App.  Div.  548. 

Not  officers  of  city  government. —  Clerks  of  this  court  are  not  such 
officers  as  are  connected  with  the  political  organization  of  the  city 
government.  Whitmore  v.  The  Mayor,  67  N.  Y.  21,  affg.  5  Hun,  195, 
followed  in  People  ex  rel.  Gilchrist  v.  Murray,  73  N.  Y.  535,  revg.  8 
Daly,  347. 

Duty  of  clerk. —  As  to  the  duty  of  the  clerk  in  keeping  and  paying 
out  moneys  received  by  him  as  such,  and  instructions  and  advice  gener- 
ally as  to  his  official  duties,  see  In  the  Matter  of  Spear,  "  Law  Journal " 
of  January  16,  1901,  where  the  opinion  of  the  Appellate  Division  is 
published  in  full.  The  case  is  referred  to  in  56  App.  Div.  625,  as  fol- 
lows: "In  the  Matter  of  Howard  Spear,  charges  dismissed;  opinion 
by  Hatch,  J.  (opinion  not  published  by  direction  of  the  court).  See 
also  as  to  this  case  note  to  Charter  §  1383. 

As  to  removal  of  clerk,  see  Charter  §  1383,  and  cases  cited. 

Tenure  of  office. —  This  section  does  not  include  an  officer  appointed 
to  hold  office  at  the  pleasure  of  the  appointing  power.  It  was  intended 
to  cover  only  officers  of  the  court,  appointed  for  a  fixed  term  of  office. 
In  re  Batey,  31  App.  Div.  309;  s.  c,  52  N.  Y.  Supp.  871;  In  re  Good- 
win, 30  App.  Div.  418;  s.  c,  51  N.  Y.  Supp.  355.  See  however  McKenna 
v.  City  of  H'ew  York,  34  App.  Div.  152;  s.  c,  54  N.  Y.  Supp.  634; 
People  ex  rel.  Joyce  v.  Van  Wart,  25  Misc.  Rep.  215,  55  N.  Y.  Supp.  68. 

A  justice  has  power  to  appoint  a  clerk  to  serve  during  the  unexpired 
portion  of  his  term  of  office.  Stuber  v.  Coler,  164  N.  Y.  22,  revg.  49 
App.  Div.  88;  s.  c,  63  N.  Y.  Supp.  723. 

Stenographer. —  The  fees  of  stenographers  for  transcript  of  minutes 
on  appeal  are  ten  cents  for  every  hundred  words.     §  353. 

Term  of  office. —  The  term  of  office  of  the  clerks  of  the  District  Courts 
in  the  city  of  New  York  is  for  a  period  of  six  years,  and  is  not  de- 
pendent upon  the  expiration  of  the  term  of  office  of  the  justice.  People 
ex  rel.  Healy  v.  Leask,  67  N.  Y.  521. 


Char.,  §§  1378,  1383.  Clerks  and  Officers.      379 

For  the  various  laws  concerning  the  appointment  of  these  clerks, 
and  their  terms  of  office  since  1851,  see  the  able  opinion  of  the  lamented 
Judge  Hamilton  \V.  Robinson,  in  above  case,  reported  in  People  ex  rel. 
Healy  v.  Leask,  6  Daly,  517,  which  was  affirmed  on  appeal. 

One  appointed  to  the  office  of  clerk  of  these  courts,  on  the  death, 
resignation,  or  removal  of  an  incumbent  thereof,  prior  to  the  expira- 
tion of  his  term  of  office,  is  appointed  for  a  term  of  six  years  from 
the  date  of  the  appointment.  People  ex  rel.  Clarke  v.  Breen,  53  N.  Y. 
Super.    (J.  &  S.)    167. 

In  court  of  justice  of  peace  of  first  district  of  Brooklyn,  term  of 
office  not  affected  by  an  action  of  the  board  of  estimate,  etc.,  of  the 
city  of  New  York,  as  to  his  compensation.  MeKenna  v.  City  of  New 
York,  34  App.  Div.  152 ;  affd.,  Court  of  Appeals,  100  N.  Y.  658. 

Clerks  to  administer  oaths. 

CHARTER,  §  1378.  The  clerks  and  assistant 
clerks  of  the  said  municipal  court  are  authorized  to 
administer  oaths  in  The  City  of  New  York  in  the 
same  manner  and  with  the  like  effect  as  clerks  of 
courts  of  record. 

Notes    to    Charter     section    1378. 

This  section  supersedes  section  1431  of  the  Consolidation  Act  (Laws 
1882,   chap.  410). 

By  section  282,  subdivision  5,  of  this  act,  it  is  made  the  duty  of  the 
clerk  "  to  administer  oaths  in  an  action,  in  the  presence  of  the  court 
and  under  its  direction."  The  word  "  clerk "  includes  "  assistant 
clerk  "  by  subdivision  3,  section  360. 

Officer,  etc.,  may  charge  fee  paid  for  oath,  postage,  etc. —  See  §  3291, 
Code  Civ.  Proc. 

No  fee  for  administering  certain  oaths. —  See  Code  Civ.  Proc,  §  3289. 

Fees  generally. —  See  notes  to  §  282. 

Removal. 

CHARTER,  §  1383.  The  justices  of  said  court 
and  the  clerks  and  assistant  clerks  thereof  may  be  re- 
moved for  cause  after  due  notice  and  an  opportunity 
of  being  heard  by  the  appellate  division  of  the  su- 
preme court  in  the  judicial  district  wherein  the  dis- 


380  Cleeks  and  Officees.  §282. 

trict  for  which  said  justices  were  elected  or  appointed, 
or  wherein  the  district  for  which  such  clerks  or  assist- 
ant clerks  were  appointed,  is  situated. 

Notes  to  Charter    section   1383. 

See  also  Const.  1894,  art.  6,  §  17.  and  Laws  1880,  chap.  354,  §  25. 

Charges  and  hearing. —  The  application  must  be  to  the  Appellate 
Division,  upon  specific  charges,  with  opportunity  to  the  representa- 
tives of  the  city  to  prove  the  charges,  and  to  the  accused  to  be  repre- 
sented by  counsel,  to  cross-examine  the  witnesses  produced  to  prove 
the  charges,  and  to  call  others  in  defense.  Matter  of  Du  Mahaut,  43 
App.  Div.  50,  59  N.  Y.  Supp.  353.  See  also  In  re  Thomas,  2  N.  Y. 
Supp.  38. 

Neglect  of  duty;  carelessness  and  neglect. — When  paying  out  money 
to  parties,  or  their  attorneys,  clerks  should  take  a  proper  receipt 
therefor;  should  keep  the  city's  money  separate  from  their  own,  and 
should  properly  account  for  the  same ;  should  deposit  the  money  in 
a  bank  and  no  checks  should  be  drawn  thereon  except  such  as  relates 
exclusively  to  the  court's  business,  and  such  as  the  clerk  is  required  to 
discharge  in  the  ordinary  course  of  his  duties.  In  the  Mutter  of  Spear, 
Law  Journal,  January  16,  1901,  where  the  opinion  of  the  Appellate 
Division  is  published  in  full.  The  case  is  referred  to  in  56  App.  Div. 
625,  as  follows:  "In  the  Matter  of  Howard  Spear,  charges  dismissed; 
opinion  by  Hatch.  J.  (opinion  not  published  by  direction  of  the  court)." 
The  opinion  contains  instructions  to  the  clerk,  how  he  is  to  keep  and 
pay  out  moneys  received  by  him,  and  also  instructions  and  advice  gen- 
erally as  to  his  official  duties.  See  also  notes  to  §  282,  "  Duties  of  the 
clerk."' 

§282.  Duties  of  the  clerk. —  It  shall  be  the  duty  of  the 
clerk  of  the  court  in  each  district : 

1.  To  keep  the  seal  of  the  court,  and  affix  it  to  the  certifi- 
cate of  the  transcript  of  the  docket  of  judgment,  or  any  other 
certificate,  when  required  so  to  do. 

2.  To  record  the  proceedings  of  the  court. 

3.  To  keep  the  records  and  other  books  appertaining  to 
the  court. 

4.  To  file  papers  delivered  to  him  for  that  purpose  in  any 
action. 

5.  To  attend  the  sitting  of  the  court  of  which  he  is  clerk, 
to  administer  oaths  in  an  action,  in  the  presence  of  the  court 


§  282.  Clerks  and  Officees.  381 

and  under  its  direction,  and  to  receive  the  verdict  of  the 
jury,  and  in  the  absence  of  the  justice  to  adjourn  causes  to  a 
time  agreed  upon  between  the  parties  or,  when  no  justice 
appears,  to  adjourn  causes  to  the  next  judicial  day. 

6.  To  authenticate  by  certificate  or  exemplification,  as 
may  be  required,  the  records  or  proceedings  of  the  court,  or 
any  other  papers  appertaining  thereto  and  filed  with  him. 

7.  To  exercise  the  powers  and  perform  the  duties  con- 
ferred and  imposed  upon  him  by  this  act. 

8.  In  the  performance  of  his  duties  to  conform  to  the 
direction  of  the  court. 

9.  To  keep  his  office  open  for  the  transaction  of  business, 
every  judicial  day,  from  nine  o'clock  in  the  forenoon  to  four 
o'clock  in  the  afternoon. 

Notes  to  section  282. 

This  section  is  taken  from  section  1428  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  which  is  the  same  as  Laws  1857,  chap.  344, 
§  72,  adding  to  subdivision  5  the  power  to  the  clerk,  in  the  absence 
of  tne  justice,  to  adjourn  causes  to  a  time  agreed  upon  between  the 
parties,   or  to  the   next  judicial    day. 

We  suppose  the  words  "  any  action "  in  subdivision  4  might  be 
held  to  also  include  '"any  proceeding,'  so  as  to  include  a  summary 
proceeamg. 

The  word  "  clerk "  includes  "  assistant  clerk "  by  subdivision  3, 
section   260. 

As  to  other  duties  of  the  clerk  as  specified  in  subdivision  7.  and  not 
included  in  this  title  and  article,  see  §§  3.  18,  29.  30.  30.  44.  7").  205, 
215.  232,  234,  238,  242,  251.  2G0.  201.  265,  267.  271,  277.  311,  316, 
317.  330,  341.  343,  347,  349  and  350,  and  Charter  §§  1373  and  1378. 

"  Fees  property  of  the  city."     See  §  349. 

As  to  "Fees  payable  to  clerks,"  see  §  347. 

For  Tabulated  fees  of  the  clerk,  see  end  of  §  356. 

Certificate  of  fines  of  jurors  to  be  sent  to  commissioner  of  jurors; 
penalty  for  neglect. —  See  §  233. 

Duties  are  ministerial;  mandamus. —  The  duties  of  the  clerk  are  en- 
tirely ministerial  {Dalton  v.  Laughlin,  4  Abb.  N.  C.  188),  and  there- 
fore he  cannot  be  required  to  insert  in  a  transcript  anything  that  does 
not  appear  in  and  by  the  judgment  itself.  A  motion  for  a  mandamus 
for  that  purpose  was  therefore  denied.  People  ex  rel.  Fox  v.  Clerk 
Eleventh  Dist.  Ct.,  McAdam,  J..  X.  Y.  L.  J..  March  30.  1894. 

Fees. — All  fees  shall  be  prepaid  before  the  service  shall  be  performed. 
See  §  347,  subd.  7. 


382  Glebes  and  Officebs.  §  282. 

Id.;   to  be  paid  before  required  to  transmit  papers. —  See  Code  Civ. 
Proc,   §  3292. 
Id.;  no  service  until  fees  paid. —  See  §  283. 
Id.;  clerk  to  collect  and  account  for. —  See  §  283. 
Id.;  property  of  the  city. — -See  §  349. 

Id.;  general  provision  as  to  fees  to  be  accounted  for. —  See  §  3286, 
Code  Civ.   Proc,  and   f   283  of  this  act. 

Id.;  penalty  for  extortion. —  For  violation  of  any  of  the  provisions  of 
sections  3280  and  3281  of  the  Code  of  Civil  Procedure,  see  §  3282, 
Code  Civ.  Proc. 

Id.;  taking  for  service  not  rendered,  prohibited. —  See  §  3281,  Code 
Civ.  Proc. 

Id.;  taking  fees  not  prescribed  by  law,  prohibited. — -See  §  3280,  Code. 
Civ.  Proc.  and  §  347  of  this  act.  See  also  §§  3281  and  3282,  Code 
Civ.  Proc. 

Transcript. —  The  clerk  of  the  court  in  the  district  in  which  judg- 
ment, where  defendant  is  liable  to  arrest,  is  entered  must,  in  any  tran- 
script issued  by  him,  insert  the  words  "  defendant  liable  to  execution 
against  his  person."     See   §  251. 

Rules  of  the  Municipal  Court. —  The  board  of  justices  of  this  court, 
as  provided  by  section  12,  has  adopted  "Rules  Relative  to  Clerks  and 
Attendants."  which  will  be  found  in  extenso  under  said  section. 

Saturday. —  By  Laws  1887,  chap.  185,  p.  205,  this  court  and  the 
clerks'  offices  thereof  may  be  closed  on  each  Saturday  at  one  o'clock  in 
the  afternoon,  from  the  first  day  of  July  to  the  first  day  of  October, 
both  days  included,  in  each  year,  provided  such  court  is  not  engaged 
in  the  actual  trial  or  hearing  of  actual  proceedings. 

Searching  records;  certificate  of  search;  fees;  penalty  for  neglect. — 
See   §   901,  Code  Civ.  Proc. 

For  fees  of  the  county  clerk,  referred  to  in  this  section,  see  Code 
Civ.  Proc,  §§  3301,  3304,  and  3305. 

Summary  proceedings. —  The  duties  of  the  clerk  as  respects  summary 
proceedings  are  to  be  found  in  chapter  17,  title  2,  sections  2231  to  2205, 
of  the  Code  of  Civil  Procedure,  which  supersedes  all  the  former  laws 
on  the  subject  of  summary  proceedings  in  this  court  except  the  session 
laws   enacted    relating   thereto,   which    were   left   unrepealed. 

By  section  2239  of  said  Code,  the  petition  by  which  these  proceed- 
ings are  now  commenced  must  be  filed  with,  and  the  precept  issued  by, 
the  clerk  of  the  court;  there  are  other  provisions  respecting  the  duties 
of  the  clerk,  hut,  as  already  stated,  it  is  not  the  province  of  this  work 
to  treat  of  "  Summary  Proceedings,"  and  the  practitioner  must  be 
referred  to  the  sections  of  the  Code  of  Civil  Procedure,  already  men- 
tioned, for  information  on  this  subject. 

Summons. —  The  clerk  must  indorse  upon  the  summons  and  upon  the 
copy  thereof,  in   an  action   where  an   execution   may   issue  against  the 


§§  283,  284.  Clekks  a.nd  Officers.  383 

person,  a  general  reference  to  that  fact  in  the  following  form : 
"  Plaintiff  claims  defendant  is  liable  to  arrest  and  imprisonment  in  this 
case."     See  §  39. 


§  283.  To  collect  and  account  for  fees,  et  cetera. —  It  shall 
be  the  duty  of  the  clerk  in  each  district,  to  collect  and  receive 
all  the  fees,  including  the  fees  allowed  by  law  in  summary 
proceeding's  to  recover  lands,  and  to  account  for  and  pay 
the  same  into  the  city  treasury  monthly,  under  oath,  on  the 
first  day  of  each  and  every  month,  or  within  three  days 
thereafter,  which  account  shall  contain  the  title  of  each  case 
and  the  amount  of  fees  received  therein,  and  the  salary  of 
such  clerk  shall  not  be  paid  until  he  shall  have  so  accounted 
and  paid,  and  he  shall  perform  no  service  until  he  shall  have 
received  the  legal  fees  therefor. 

Notes  to  section  283. 

This  section  is  taken  from  section  1429  of  the  Consolidation  Act 
(Laws  1882.  chap.  410),  which  was  the  same  as  section  73,  chapter 
344,  Laws   1857. 

Fees;  provisions  of  law  as  to. —  See  notes  to  §  282. 

Id.;   Tabulated  statement  ot. —  See  the  end  of  §  356. 

§  284.  Docket;  what  to  contain —  The  clerk  of  the  court 
in  each  district  must  keep  a  book,  denominated  a  docket,  in 
which  must  be  entered  by  him: 

1.  The  title  of  every  action  or  proceeding,  in  which  a 
summons  or  precept  is  issued. 

2.  The  date  of  the  summons  or  precept,  and  the  time  of 
its  return,  and  if  an  order  of  arrest,  warrant  of  attachment 
or  writ  of  replevin  was  issued  such  facts  must  also  be  stated. 

3.  The  time  when  the  parties,  or  either  of  them  appeared; 
a  minute  of  their  pleadings,  if  in  writing,  referring  to  them; 
if  not  in  writing  a  concise  statement  of  the  pleadings. 

4.  Every  adjournment,  and  to  what  time. 

5.  When  a  trial  by  jury  is  demanded,  the  demand  must 
be  stated,  and  by  whom  made,  and  the  time  appointed  for 
the  trial,  and  the  return  of  the  jury. 

6.  The  names  of  the  jury  sworn. 


381  Glebes  and  Officers.  §285. 

7.  The  verdict  of  the  jury  and  when  received;  if  the  jury 
disagree  and  arc  discharged,  that  fact  must  be  stated. 

8.  The  judgment  of  the  court,  its  amount,  arid  the  costs  in 
the   action. 

9.  The  issuing  of  execution,  when  issued,  and  to  whom; 
the  renewals  thereof,  if  any,  and  when  made;  the  return  and 
when  made,  and  a  statement  of  money  paid  to  or  by  the 
clerk,  and  when,  and  by  or  to  whom. 

10.  The  giving  of  a  transcript  to  he  filed  in  the  county 
clerk's  office,  and  when  and  to  whom  given. 

11.  The  receipt  of  a  notice  of  appeal  or  order  to  make  or 
amend  a  return,  stating  the  time  of  the  receipt  thereof,  and 
the  time  of  filing 'a  return  on  appeal. 

12.  Any  other  order  as  the  court  may  direct. 

Notes    to   section   284. 

This  section  is  taken  from  section  1409  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  which  was  the  same  as  section  59,  chapter 
344,  Laws   1857. 

When  judgment  may  be  entered. —  The  clerk  is  a  co-operative  part  of 
the  court,  performing  its7  ministerial  duties,  while  the  functions  of 
the  justice  are  judicial.  The  entry  or  recording  of  the  decision  as  a 
judgment,  whether  by  a  clerk,  or  by  the  entry  of  it  by  the  justice  in 
his  docket,  is,  from  its  ministerial  character,  merely  directory,  and 
niay  be  validly  performed  after  the  time  fixed  by  the  statute.  Dalton 
v.  Loughlin,  4   Abb.   N.  C.   188. 

Ine  clerk  has  no  power  to  enter  judgment  even  upon  the  verdict  of 
a  jury,  except  by  the  direction  of  the  justice.  The  court  must  give 
the  judgment.     De  la  Figanierre  v.  Jackson,  4  E.  D.  Smith,  477. 

§  285.  Entries;  how  to  be  made. —  The  several  particulars 
in  the  last  section  specified  must  be  entered  under  the  title 
of  the  action  or  proceeding  to  which  they  relate,  and  at  the 
time  when  they  occur.  Such  entries  in  the  docket,  or  a 
transcript  thereof,  certified  by  the  clerk  or  his  successor  in 
office,  with  the  seal  of  the  court  thereon  impressed,  are 
evidence  to  prove  the  facts  as  stated  therein. 

Note   to   section    285. 

This  section,  together  with  sections  286,  287,  288,  and  289,  are  taken 
from  sections   140!),   1410,    1411,   1412,   1413,  and   1414  of  the  Consolida- 


§§  286,  287,  288,  289.     Clerks  and  Officers.  385 

tion  Act  (Laws  1882,  chap.  410),  which  are  the  same  as  Laws  1857, 
chap.  344,  §§  59,  GO,  61.  62,  63,  and  64,  with  the  exception  of  the  word 
"  deputy  "'   changed  to   "  assistant." 

§  286.  Index. —  The  clerk  must  keep  an  index  to  his 
docket,  in  which  must  be  entered  the  names  of  the  parties  to 
each  summons  or  precept,  with  a  reference  to  the  page  of 
entry;  the  names  of  the  parties  respectively,  must  be  entered 
in  the  index  in  alphabetical  order. 

Note   to  section    286. 

See  note  to  §  285. 

§  287.  To  be  delivered  by  clerk  to  his  successor. —  It  is  the 
duty  of  the  clerk  to  deliver  to  his  successor  in  office  his 
official  dockets  and  papers  on  file  in  his  office,  as  well  his  own 
as  those  of  his  predecessors  which  may  be  in  his  custody, 
there  to  be  kept  as  public  records. 

Note   to   section    287. 

See  note  to  §  285. 

§  288.  Successor  may  issue  execution  on  former  unsatisfied 
docket — A  clerk  with  whom  the  docket  of  his  predecessor  is 
deposited,  may  issue  execution  on  a  judgment  there  entered 
and  unsatisfied,  in  the  same  manner  and  with  the  same  effect 
as  though  he  was  clerk  of  the  court  at  the  time  the  judgment 
was  rendered. 

Note   to   section   288. 

See  note  to  §  285. 

§  289.  Certified  copies;  prima  facie  evidence. —  A  copy  of 
a  paper  on  file  in  the  office  of  the'  clerk,  certified  by  him  or 
his  assistant  as  such,  shall  be  prima  facie  evidence  thereof. 

Note  to  section  289. 

See  note  to  §  285- 

Note.— There  are  no  sections  from  289  to  293. 

25 


386  Marshals.  Char.,  §  1424. 

ARTICLE  II. 

Marshals. 

Section  293.  Marshal  not  to  appear,  et  cetera. 

294.  Bond  to  be   executed   by. 

295.  Prosecution  of  bond. 

29G.  In  what  court  bond  may  be  prosecuted. 

297.  Judgments    against    marshals;    transcript   and   execution. 

298.  Entry  of  judgment  to  be  endorsed  on  bond;  how. 

299.  Amount  collected  to  be  credited  on  bond. 

300.  City  clerk  to  report   cancelled  bonds  to  mayor;   renewal 

of  bond. 

301.  Appointment  deemed  waived  for  failure  to  file  bond. 

302.  Process  to  be  served  by  marshals. 

303.  Marshal  may  serve  process  within  city  limits. 

304.  Certain  laws  in  relation  to  sheriffs  made  applicable. 

305.  Marshal  to  keep  entry  book  and  indorse,  et  cetera. 

306.  Removal  and  suspension  of  marshals. 

Notes    to    article    II. 

Marshals. —  The  commissioners  to  revise  and  codify  the  laws  relat- 
ing to  this  court  by  chapter  218,  Laws  1902,  in  their  report"  to  the 
Legislature,  under  the  above  contents,  say.  "  Sections  1424,  1425,  1426r 
and  1427  of  the  Charter  are  not  included  in  this  act,  but  are  pre- 
served as  Charter  enactments." 

These  sections  are  as  follows: 

Marshals  of  the  cities  of  New  York  and  Brooklyn  continued. 
CHARTER,  §  1424.  The  marshals  in  the  city  of 
New  York  as  heretofore  known  and  bounded,  and  the 
marshals  and  constables  in  the  cities  of  Brooklyn  and 
Long  Island  City,  and  in  the  several  towns  mentioned 
in  section  one  of  chapter  one  of  this  act,  in  office  at 
the  time  this  act  shall  take  effect,  shall  continue  to 
hold  such  offices  and  perform  the  duties  thereof  until 
midnight  of  the  thirty-first  day  of  January,  eighteen 
hundred  and  ninety-eight,  and  said  terms  of  office 
shall  then  expire,  except  those  of  the  marshals  in  the 
late  city  of  New  York  and  the  marshals  in  the  late 


Chab.,  §  1425.  Marshals.  387 

city  of  Brooklyn  who  shall  continue  to  be  marshals  of 
The  City  of  New  York,  as  hereby  constituted,  till  the 
expiration  of  their  respective  terms. 

Note  to  Charter    section   1424. 

The  law  relating  to  "  City  Marshals  "  was  principally  contained  in 
chapter  20,  title  1.  sections  1699  to  1711,  both  inclusive,  of  the  Con- 
solidation Act  (Laws  1882,  chap.  410).  The  sections  have  all  been 
repealed  and  sections  293  to  300  enacted  in  their  place.  This  section 
takes  the  place  of  section  1099  of  the  Consolidation  Act. 

Mayor  to  appoint  marshal;  term  of  office. 

CHARTER,  §  1425.  On  or  before  the  twentieth 
day  of  January,  eighteen  hundred  and  ninety-eight, 
the  mayor  of  The  City  of  New  York  shall  appoint  ten 
marshals  in  the  manner  provided  in  the  next  section, 
who  shall  hold  their  respective  offices  for  six  years; 
and  there  shall  be  appointed  in  like  manner  every 
sixth  year  thereafter  the  same  number  of  marshals  for 
the  like  terms.  Any  person  appointed  after  the  com- 
mencement of  the  term,  as  herein  prescribed,  shall 
hold  only  until  the  expiration  of  the  term  and  until  a 
successor  is  duly  appointed  and  has  qualified. 

Notes    to    Charter   section    1425. 

This  section  supersedes  the  Consolidation  Act,  §§  106  and  1699.  See 
also  §   1427,  Charter. 

Appointing  power. —  The  power  of  appointment  by  the  mayor  under 
this  section  is  an  executive  power  of  the  State  vested  by  the  Con- 
stitution and  law  in  him,  and  the  judicial  power  can  neither  inquire, 
into  his  motives  in  the  exercise  of  this  power,  nor  control  him  in 
such  exercise.  People  ex  rel.  Roosevelt  v.  Edson,  52  N.  Y.  Super. 
(J.  &  S.)  53,  revg.  51  N.  Y.  Super.  (J.  &  S.)  238;  s.  c,  51  N.  Y.  Super. 
(J.   &  S.)    22. 

Must  be  in  writing. —  No  appointment  to  office  can  be  made  verbally 
except  where  permitted  by  the  terms  of  the  statute  conferring  the 
appointing  power;  in  the  absence  of  such  permission,  the  appoint- 
ment  must   be   by   commission,   viz.,   a    formal    writing   signed   by   the 


388  Marshals.      Chae.,  §§  1426, 1427. 

official  with  whom  the  appointing  power  rests.  People  ex  rel.  Babcock 
v.  Hurray,  70  X.  V.  521,  revg.  8  Hun,  577.  See  People  ex  rel.  Kressen 
v.  Fitzsimmons,  68  N.   Y.  .">14. 

Certificate  of  appointment. —  By  the  Charter  section  1547  every  per- 
son appointed  or  elected  shall  record  a  certificate  designating  the 
terms   for  which  said  person  has  been   appointed  or  elected. 

Id. ;  marshals  for  the  boroughs  of  Queens  and  Richmond. 

CHARTER,  §  1426.  Six  of  said  marshals  so  to  be 
appointed  shall  be  residents  of  the  borough  of  Queens, 
and  four  residents  of  the  borough  of  Richmond ;  and 
said  marshals  shall  be  assigned  by  the  mayor  to  such 
duty  within  the  boroughs  wherein  they  reside  respect- 
ively as  is  or  may  be  provided  by  law. 

Successors  to  present  marshals  of  New  York  city. 

CHARTER,  §  1427.  On  the  expiration  of  the 
terms  of  said  marshals  of  the  city  of  New  York  men- 
tioned in  the  last  clause  of  section  fourteen  hundred 
and  twenty-four  of  this  act,  the  said  mayor  shall 
appoint  their  successors  for  terms  of  six  years  respect- 
ively. 

Notes  to  Charter  section  1427. 

Tli is  section  supersedes  section  1699  of  the  Consolidation  Act  (Laws 
1882,  chap.  410).     See  also  §   1425  and  notes. 

Action  by  marshal. —  He  cannot  serve  a  summons  in  his  own  action, 
where  he  is  plaintiff.     See  Smith  v.  Burlis,  23  Misc.  Rep.  544. 

Appearance  or  acting  on  behalf  of  either  or  any  party  by  a  marshal  in 
an  action  or  proceeding  is  prohibited  by  section  293.  And  see  §  63, 
Code  Civ.  Proc. 

Arrest;  duties  of  marshal. —  See  §  66. 

Id.;  Id.;  execution  on. —  See  §§  266,  272. 

Id.;  dumping  garbage  into  the  waters  of  the  port  of  New  York. — 
See   §   880,  Charter. 

Id.;  order  of,  must  be  directed  to  marshal. —  See  §  56. 

Id.;  Id.;  must  be  served  by  marshal. —  See  §  59. 

Id.;  marshal  may  require  sureties  in  undertaking  on,  to  justify. — 
"See  §  63. 


Char.,  §  1427.  Marshals.  389 

Bond  of  a  marshal.—  §  203. 

Bonds;  prosecution  of. —  §  205. 

Compensation  of  marshal  are  his  lawful  fees  and  necessary  expenses 
for  taking  the  property  and  keeping  it  "  as  taxed  by  the  court  out  of 
which  the  proceeding  issued."  See  §  104  of  this  act.  Formerly, 
under  section  1711  of  the  Consolidation  Act  (Laws  1882,  chap.  410), 
the  compensation  was  left  to  the  discretion  of  the  justice.  See  Stew- 
art v.  Fidelity   L.  Assn.,   10   Misc.  Rep.  49. 

Contempt;  when  guilty  of. —  Dailey  v.  Fenton,  47  App.  Div.  418,  62, 
N.  Y.  Supp.    (0G  St.  Rep.)   337. 

Civil  office;  not  to  hold  any  other. —  By  the  Charter  section  1549  no 
appointive  officer  under  the  city  government  can  hold  any  other  civil 
office. 

Definition  of  the  word  "  Marshal."—  See  §  360,  subd.  4. 

Execution  to  marshal,  its  requisites;  notice  of  sale,  sale,  and  other 
provisions  concerning  marshals.     See   §  271    and  notes. 

For  unpaid  taxes.  §  853,  Consolidation  Act.  Revised  in  Charter, 
§   926. 

Duties  of  marshal  thereon.  §§  855  and  856.  Revised  in  Charter, 
§§   928  and  929. 

On  judgment  in  action  wherein  a  warrant  of  attachment  was  had, 
how  executed.     §   91,  this  act. 

Against  marshal  on  judgment  against  him.     §§  270  and  297,  this  act. 

Exempt  property  from  levy  and  sale. —  See  §§  1389  to  1404,  Code  Civ. 
Proc. 

Fees  of  marshal.—  See  §  354,  and  Code  Civ.  Proc,  §  339. 

Id.;  replevin. —  See   §    104;    Stewart  v.  Fidelity,  etc.,   19  Misc.  Rep. 

419. 

Id.;  tabulated.— See  end  of  §  356. 

Jury. —  Marshal  in  charge  of.     See   §   240. 

Judgment  against  marshal.      §§   270  and  297.  this  act. 

Liability  of  marshal  to  execution  creditor. —  See  §  276  and  notes. 
See  also  §§   113,  114. 

Being  once  relieved  from  liability,  the  court  has  no  power  to  renew 
his  liability.     Lewis  v.  Stevens,  03  N.  Y.  57. 

Oath  to  marshal. —  See  notes  to  §  240. 

Order  of  arrest  must  be  directed  to  a  marshal  (§  56,  this  act),  and 
must  be  served  by  him.  §  50,  this  act.  Duties  on  executing.  §§  61, 
62,  63,  64,  and  65,  this  act. 

Powers  of.— See  §  330,  Code  Civ.  Proc. 

Process  must  be  served  and  executed  by  a  marshal.  §§  55  and  303, 
this  act.     By  the  latter  section,  anywhere  in  the  city  of  New  York. 

Removal  of  marshal  by  mayor. —  §  306,  this  act. 

Return  of  marshal  shall  be  presumptive  evidence  in  action  against 
sureties.     §  127,  this  act. 


390  Marshals.  §294. 

Summary  proceedings. —  Service  of  precept   in  §   36,  this  act. 

Summons,  service  of.  §  31,  this  act.  Alias  summons.  §  30,  this 
act. 

Transcript  of  judgment  against  marshal. —  §§  270  and  297,  this  act. 

Sale  on  execution,  when  and  how  conducted.  See  §  1384,  Code  Civ. 
1'roc,  and  notes  to   §  271  of  this  act. 

§  293.  Marshal  not  to  appear,  et  cetera. —  A  marshal  of  the 
city  of  New  York  cannot  appear  or  act  on  behalf  of  either 
or  any  party  in  an  action  or  proceeding  in  said  municipal 
court. 

Note   to   section   293. 

This  section  is  taken  from  section  1369  of  the  Charter  (Law3  1397, 
chap.  378,  as  amended  in  1901). 

§  294.  Bond  to  be  executed  by —  No  marshal  shall  be  per- 
mitted to  enter  upon  the  duties  of  the  office  until  he  shall 
execute  a  bond,  with  two  sufficient  sureties,  who  shall  be 
residents  of  and  shall  own  real  estate  within  the  city  of  New 
York,  to  the  amount  of  double  the  penalty  of  the  bond,  to 
the  city  of  New  York,  in  the  penal  sum  of  two  thousand 
dollars,  jointly  and  severally  to  answer  the  city  of  New  York, 
and  any  parties  that  may  complain  conditioned  that  such 
marshal  shall  well  and  faithfully  execute  the  duties  of  said 
office  of  marshal,  without  fraud,  deceit  or  oppression,  such 
sureties  to  justify  in  double  the  amount  of  such  bond.  The 
said  bond  shall  be  delivered  to  the  city  clerk  of  the  city  of 
New  York,  who  shall  judge  of  and  determine  the  competency 
of  the  sureties;  and  should  he  approve  of  the  same,  he 
shall  note  his  approval  thereon,  and  shall  cause  such  bond  to 
be  filed  in  the  office  of  the  city  clerk,  forthwith  after  having 
been  approved  by  him,  and  he  shall  either  approve  of  or 
reject  such  bond  within  five  days  after  the  same  shall  have 
been  presented  to  him  for  that  purpose.  Nothing  in  this 
act  shall  be  construed  to  prevent  a  surety  company  author- 
ized by  law  to  act  as  surety. 

Note   to   section   294. 

This  and  sections  295  and  290  are  taken  and  constructed  from  sec- 
tions 1700,   1701,  and  1702  of  the  Consolidation  Act   (Laws  1882,  chap. 


§  295.  Marshals.  391 

410)  and  from  section  1428  of  the  Charter,  the  provisions  of  which 
latter  section  have  been  substantially  followed  in  sections  294,  295,  and 
296.     The  bond  of  the  marshal  is  increased  from  $1,000  to  $2,000. 

§  295.  Prosecution  of  bond. —  Any  person  who  shall  be  ag- 
grieved by  any  official  misconduct  on  the  part  of  any  marshal, 
and  who  may  desire  to  prosecute  his  official  bond,  and  who 
shall  have  first  obtained  judgment  against  such  marshal  for 
official  misconduct,  may  move  before  a  justice  of  the  supreme 
court  at  special  term,  in  the  judicial  department,  wherein 
the  borough  for  which  such  marshal  shall  have  been  ap- 
pointed, is  situated,  after  giving  such  marshal  and  his  sure- 
ties eight  days  previous  notice  of  intention  so  to  do,  by 
personal  service  of  said  notice  on  them,  stating  when  such 
motion  will  be  made  and  of  the  papers  to  be  used  on  such 
motion,  for  leave  to  prosecute  such  official  bond  in  his  own 
name,  and  such  leave  shall  be  granted  upon  it  appearing 
satisfactorily  to  said  court : 

1.  That  a  judgment  has  been  obtained  in  his  favor  against 
such  marshal  for  official  misconduct,  specifying  the  time 
when  and  the  court  whereby  such  judgment  was  rendered, 
and  the  amount  thereof. 

2.  That  such  transcript  of  judgment  has  been  filed  against 
such  marshal  in  the  office  of  the  clerk  of  the  county,  within 
which  the  borough  for  which  said  marshal  shall  have  been 
appointed,  is  situate;  specifying  the  time  when  such  tran- 
script was  filed  and  execution  issued,  and  that  the  sheriff  of 
that  county  has  returned  said  execution,  wholly  or  partly 
unsatisfied,  after  having  demanded  payment  thereof  of  such 
marshal;  and  his  neglect  or  refusal  to  pay  the  same,  and  if 
any  payments  have  been  made  on  such  execution,  specifying 
the  amount  thereof,  but  where  such  marshal  shall  have  died 
or  removed  from  the  city  of  New  York,  a  demand  for  the 
payment  of  the  amount  of  such  execution  shall  not  be  neces- 
sary. 

3.  That  such  judgment  is  wholly  or  partly  unpaid,  speci- 
fying the  amount  uncollected  or  unpaid,  and  that  the  sureties 
or  surety,  have  or  has  been  served,  with  the  notice  and 
papers  hereinbefore  mentioned. 


392  Marshals.  §  21)5. 

Notes   to  section   295. 

See  notes  to  §  294.  See  §  1,  subd.  5,  as  to  action  upon  the  bond  in 
this  court. 

Liability  of  marshal  to  execution  creditor. —  See  §  270    and  notes. 

Liability  of  sureties;  exempt  property. —  The  sureties,  are  liable  for 
the  value  of  exempt  property  seized  by  a  marshal.  (Jriebe  v.  NortJirup, 
60  App.  Div.  86. 

Id.;  failure  of  marshal  to  make  return. —  In  an  action  against  a  con- 
stable and  his  sureties  it  is  proper  to  join  claims  that  he  took  suffi- 
cient goods  on  plaintiff's  execution  to  satisfy  it;  that  he  has  failed  to 
make  return  and  keeps  and  detains  the  money.  Moore  v.  Smith,  10- 
How.  301. 

The  surety  of  a  marshal  upon  his  official  bond  is  liable  in  damages, 
for  the  marshal's  neglect  to  return  an  execution  within  the  time  re- 
quired by  statute.  Carpenter  v.  Doody,  1  Hilt.  405.  The  condition 
of  the  bond,  that  he  "  shall  in  all  things  well  and  faithfully  perform 
and  execute  the  duties  of  marshal  without  fraud,  deceit,  or  oppres- 
sion," requires  two  things:  First,  that  he  shall  perform  the  duties  of 
his  office ;  second,  that  he  shall  do  so  without  fraud,  deceit,  or  oppres- 
sion. And,  in  the  action  upon  the  bond  for  the  official  neglect,  e.  g.r 
to  return  an  execution  within  the  requisite  time,  it  is  not  neces- 
sary to  show  fraud,  deceit,  or  oppression.  0  Wend.  456.  In  such  an 
action,  a  judgment,  previously  recovered  against  the  marshal  for  the 
same  neglect,  is  prima  facie  evidence  of  the  amount  for  which  the 
surety  is  liable.     Carpenter  v.  Doody,  1  Hilt.  405. 

Id.;  stranger;  taking  property  of. —  In  an  action  against  the  sureties, 
where  the  alleged  breach  of  the  bond  is  misconduct  of  the  marshal,  in 
levying  upon  the  goods  of  one  person  under  an  execution  against  an- 
other, the  judgment  in  an  action  by  the  party  whose  goods  were  taken 
against  the  marshal  for  the  unlawful  taking  may  be  given  in  evidence, 
although  the  record  does  not  show  that  the  judgment  was  recovered 
against  him  as  marshal,  or  for  misconduct  in  his  office.  Such  evi- 
dence is  material  to  prove  the  act  of  taking,  and  parol  evidence  dehors 
the  record  may  be  given  to  show  the  grounds  of  the  judgment,  and  that 
the  act  was  done  colore  officii.  Mayor,  etc.,  v.  Ryan,  7  Daly,  430.  To 
the  contrary,  see  Berry  v.  Schad,  50  App.  Div.   132. 

Id.;  valid  judgment. —  The  sureties  on  a  marshal's  bond  are  not  liable 
until  after  a  valid  judgment  has  been  recovered  against  their  prin- 
cipal.    In  re  Braiser,  2  How.  Pr.  N.  S.   154. 

Not  liable  for  indemnity  money  paid  to  marshal. —  A  surety  upon 
the  official  bond  of  a  marshal,  conditioned  that  if  the  said  marshal 
"  shall  well  and  faithfully  execute  the  duties  of  said  office  of  marshal 
without  fraud,  deceit,  or  oppression,  the  above  obligation  shall  be  void; 
otherwise  shall  remain  in  full  force  and  virtue,"  is  not  liable  there- 
under for  the  failure  of  the  marshal  to   return  to  the  plaintiff  in  an 


§§  296,  297.  Marshals.  393 

execution  a  sum  of  money  deposited  by  the  latter  with  the  marshal 
as  security  against  any  damages  which  the  marshal  might  sustain  by 
reason  of  a  levy  made  by  him  under  the  execution,  pursuant  to  a 
contract  between  the  marshal  and  the  plaintiff.  De  Sisto  v.  Stimmel, 
58  App.  Div.  486. 

§  296.  In  what  court  bond  may  be  prosecuted. —  A  justice 
referred  to  in  the  preceding  section,  may  order  such  bond 
to  be  prosecuted  in  the  municipal  court  of  the  city  of  New 
York,  or  in  the  city  court  of  the  city  of  Xew  York,  if  such 
borough  be  within  the  county  of  Xew  York,  or  in  the  county 
court  of  the  county  wherein  such  borough  is  situated,  if  in 
any  other  county.  Either  of  said  courts  shall  have  jurisdic- 
tion in  actions  brought  on  such  bond,  upon  such  leave  being 
granted,  and  the  said  justice  upon  said  motion  may  award 
the  aggrieved  party  his  reasonable  costs  on  such  motion,  not 
exceeding  the  sum  6i  ten  dollars,  which  shall  be  included 
in  the  judgment  obtained  upon  such  bond. 

Notes  to  section  296. 

This  section  is  taken  from  section  1702  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  and  section  1428  of  the  Charter  of  1897,  as 
amended  in  1901. 

See  notes  to  §  294. 

"  Jurisdiction,"  in  such  action  in  this  court.  See  §  1,  subd.  5.  See 
also  Moog  v.  Keogh,  4  N.  Y.  St.  Rep.  539;  s.  c,  42  Hun,  494. 

§  297.  Judgments  against  marshals;  transcript  and  execution. 
—  Whenever  any  judgment  shall  be  rendered  against  any 
marshal  or  his  sureties  or  surety  in  any  court  as  provided  in 
the  foregoing  section,  a  transcript  thereof  shall  be  filed  with 
the  county  clerk  in  the  county  wherein  the  judgment  is  so 
obtained,  and  from  the  filing  of  such  transcript  the  provisions 
of  section  two  hundred  and  seventy  of  this  act  apply. 

Notes  to  section  297. 

This  section  is  taken  from  section  1703  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  which  is  similar  to  section  1398  of  the  Con- 
solidation Act.  The  names  of  the  "  Marine  Court "  and  "  District 
Courts  "  have  been  omitted.  The  name  of  the  former  was  changed  to 
"  City  Court  of   New  York "  by  Laws   1883,  chap.   26,  and  the   latter 


304  Marshals.  §§298,299. 

court  was  abolished  by  section  1350  of  the  Charter  (Laws  1807,  chap. 
378). 

The  filing  of  a  transcript  in  the  office  of  the  clerk  of  the  Court  of 
Common  Pleas  has  also  been  omitted.  Said  court  was  abolished  since 
January  1,  1896,  by  the  Constitution  of  1894,  article  6,  section  5. 

Judgment  against  marshal. —  See  §  270. 

Return  of  execution  and  satisfaction. —  See  §  277. 

§  298.  Entry  of  judgment  to  be  endorsed  on  bond;  how. — 
The  clerk  of  the  county  wherein  said  judgment  is  entered 
shall  issue  a  transcript  upon  application  of  the  judgment 
creditor,  stating  the  amount  of  the  judgment  and  that  the 
sum  is  a  charge  against  the  bond  of  the  marshal.  The 
transcript  may  be  filed  with  the  city  clerk  in  the  office 
wherein  the  bond  of  said  marshal  is  filed,  and  the  city  clerk 
shall  make  a  memorandum  on  the  official  bond  of  every  mar- 
shal, upon  the  filing  of  every  transcript,  of  a  judgment  ob- 
tained against  him  and  his  sureties,  and  of  the  time  when  and 
the  court  whereby  such  judgment  was  rendered,  and  the 
amount  thereof,  and  shall  be  entitled  to  a  fee  of  fifty  cents 
therefor,  which  the  court  rendering  judgment  shall  have 
power  to  include  in  such  judgment,  together  with  whatever 
other  disbursements  are  or  may  be  necessarily  incurred  in 
said  action,  and  the  said  bond  shall  be  cancelled  to  the 
amount  of  such  judgment. 

Notes  to  section  298. 

This  section  is  taken  from  section  1704  of  the  Consolidation  Act 
(Laws  1882,  chap.  410). 

Transcript. —  By  this  section  a  transcript  of  a  judgment  against  a 
marshal    may  be  filed  with  the  "  city  clerk." 

§  299.  Amount  collected  to  be  credited  on  bond. —  Whenever 
any  action  shall  be  commenced  against  the  sureties  of  any 
marshal,  and  such  sureties  shall  pay  the  amount  for  which 
such  suit  is  brought,  and  the  costs  and  disbursements  in- 
curred therein,  or  any  part  thereof,  the  party  or  parties  so 
paying  shall  be  entitled  to  have  such  sum  so  paid  credited 
upon  such  bond,  upon  presenting  the  certificate  of  the  plain- 
tiff or  his  attorney  in  such  action,  acknowledging  such  pay- 


§§300,301,302.  Marshals.  395 

ments  to  such  clerk  aforesaid,  and  upon  such  clerk  endorsing 
such  payment  on  such  bond,  it  shall  be  cancelled  to  the 
amount  so  paid. 

Note  to  section   299. 

This  section   is  the  same  as   section   1705   of   the  Consolidation  Act 

(Laws  1882,  chap.  410). 

§  300.  City  clerk  to  report  cancelled  bonds  to  mayor;  renewal 
of  bond. —  Whenever  judgment  shall  be  rendered  against  the 
official  bond  of  any  marshal,  sufficient  or  partially  sufficient 
to  cancel  the  same,  the  city  clerk  aforesaid,  shall  report  to 
the  mayor  the  fact,  and  it  shall  be  the  duty  of  the  mayor  to 
compel  such  marshal  to  renew  his  official  bond,  if  the  same  be 
cancelled  in  whole,  or  to  furnish  an  additional  bond,  for  the 
amount  of  the  cancellation  in  the  penal  sum  of  double  such 
amount,  if  said  bond  be  cancelled  in  part,  and  should  said 
marshal  neglect,  refuse,  or  fail  so  to  do,  within  ten  days  after 
being  notified,  he  shall  be  removed  by  the  mayor  aforesaid, 
or  suspended  from  performing  the  duties  of  the  office  until 
such  time  as  he  shall  renew  the  same,  and  such  bond  shall  be 
renewed  in  the  same  manner  as  often  as  the  same  shall  be 
cancelled. 

Note  to  section  300. 
This   section   is   taken   from   section    1707    of   the   Consolidation   Act 
(Laws  1882,  chap.  410). 

§  301.  Appointment  deemed  waived  for  failure  to  file  bond. — 

Every  marshal  shall,  within  thirty  days  after  his  appoint- 
ment, enter  into  a  bond  in  the  manner  provided  in  this  act, 
or  he  shall  be  deemed  to  have  waived  his  appointment  as 
such  marshal,  and  some  other  suitable  and  proper  person 
shall  be  appointed  in  his  place  and  stead  to  discharge  the 
duties  appertaining  to  such  office  of  marshal. 

Note  to  section  301. 

Tli is   section   is   taken   from   section    1708    of   the   Consolidation   Act 
(Laws  1882,  chap.  410). 

§  302.  Process  to  be  served  by  marshals. —  Every  summons, 
precept,  order  of  arrest,  attachment,  writ  of  replevin,   or 


396  Maeshals.  §303. 

other  process  issued  by  or  out  of  the  municipal  court,  and 
every  summons  or  precept  issued  by  the  clerk  of  the  court 
in  any  district,  and  every  summons  issued  by  any  justice 
thereof,  shall  be  served  and  executed  by  a  marshal,  except 
as  prescribed  in  section  thirty-six  of  this  act;  but  no  person 
other  than  a  marshal  shall  be  entitled  to  any  fees  or  other 
compensation  therefor,  except  the  persons  who  serve  pro- 
cess for  the  corporation  counsel. 

Notes  to  section  302. 

This  section  is  taken  from  section  1709  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  which  is  the  same  as  Laws  1879,  chap.  102. 

This  section  specifies,  "and  every  summons  issued  by  any  justice 
thereof."  The  justice  does  not  issue  the  summons  in  this  court,  the 
clerk  of  the  court  issues  the  summons.     See  §  27. 

The  same  error  is  contained  in  section  1709  of  the  Consolidation  Act, 
although  by  section  1297  of  the  Consolidation  Act,  the  clerk  of  the 
court  issued  the  summons.  Attention  to  this  was  called  in  the  Fourth 
Edition  of  this  work,  on  page  444. 

Process  to  be  served  by  marshal. —  Service  of  an  order  of  arrest, 
warrant  of  attachment,  or  requisition  to  replevy.     See  §  55  and  notes. 

Who  may  serve  the  summons. —  See  §  36   and  notes. 

Papers  to  be  delivered  to  arrested  person. —  See  §  59. 

How  warrant  of  attachment  to  be  executed. —  See  §  77  and  notes. 

Service  of  summons  and  warrant  on  defendant. —  See  §  83  and  notes. 

Copy  of  process  to  be  delivered  when  served. —  See  §  101,  Code  Civ. 
Proc. 

Execution  of  process;  punishment  for  violation;  may  return  by  mail. 
—  See  §  102,  Code  Civ.  Proc. 

§  303.  Marshal  may  serve  process  within  city  limits. —  A 
marshal  of  the  city  of  New  York  may,  and  is  empowered, 
and  has  the  authority  to  serve  or  execute  all  process  and 
mandates  of  the  municipal  court  of  the  city  of  New  York, 
in  any  part  of  the  city  of  New  York,  notwithstanding  he 
was  appointed  for  or  is  a  resident  in,  a  particular  borough. 

Notes  to  section  303. 

This  section  is  new,  and  removes  any  doubt  as  to  the  service,  or 
execution  by  a  marshal  of  "  all  process  and  mandates  "  in  any  part 
of  the  city  of  New  York,  as  now  constituted,  viz.:   Four  counties  and 


§  304.  Marshals.  397 

five  boroughs,  under  the  Charter  (Laws  1897,  chap.  378),  as  amended 
by  Laws  1901,  chap.  466.     See  also  §  304. 

Process  to  be  served  by  marshal. —  See  &§  55  and  302. 

Mandate  is  defined  by  §  3343,  subd.  2,  Code  Civ.  Proc. 

§  304.  Certain  laws  in  relation  to  sheriffs  made  applicable 

All  provisions  of  law  in  relation  to  the  taking'  and  restitution 
of  property  by  sheriffs  of  counties  shall  apply  to  the  taking 
and  restitution  of  property  by  the  said  marshals,  except  that 
a  marshal  is  not  restricted  in  the  performance  of  his  duty 
as  such,  to  the  territorial  limits  of  a  county,  when  engaged 
in  the  service  or  execution  of  process  or  mandates,  but  is 
authorized  to  act  within  the  limits  of  the  city  of  ]STew  York. 

Notes  to  section  304. 

This  section  is  taken  from  section  1711  of  the  Consolidation  Act 
(Laws  1882,  chap.  410).  The  addition,  after  the  word  "marshals,"  is 
new. 

These  "  provisions  of  law "  are  to  be  found  mainly  in  the  Code  of 
Civil  Procedure,  the  Charter,  and  in  the  Session  Laws.  The  following 
are  deemed  of  sufficient  importance  for  insertion  here.  See  also  note3 
to  §   302. 

Attachment. —  Warrant  of,  must  be  served  and  executed  by  a  mar- 
shal.    §  55,  this  act. 

Duties  on  execution  of  warrant.     See  §§  77  to  91,  inclusive,  this  act. 

Return  on  execution,  and  duties  thereunder.     §§  88,  this  act. 

Execution  on  judgment  where  property  has  been  attached.  §  91,  this 
act. 

Marshal  to  approve  sureties  on  undertakings  by  defendant  on  warrant 
of  attachment.     §  84,  this  act. 

Fees  of  marshals. —  See  §§  354  and  356,  where,  under  notes  to  the 
latter  section,  the  fees  of  the  marshal,  are  tabulated. 

Id.;  and  necessary  expenses  of  marshal  in  replevin. —  See  §  104;  and 
see  Stewart  v.  Fidelity  Loan  Co.,  19  Misc.  Rep.  49. 

Id. —  No  officer  of  the  city  government  except  city  marshals  shall 
receive  fees  to  their  own  use.  §  56  of  the  Consolidation  Act,  revised 
by  Charter,   §   1550.     See  §  354,  this  act. 

Levy. —  Where  a  sheriff  has  notice  that  goods  levied  upon  by  him 
while  in  the  possession  of  a  third  person  consist  partly  of  goods  claimed 
by  the  latter,  under  a  chattel  mortgage,  from  the  judgment  debtor,  and 
partly  of  goods  purchased  from  another,  it  is  his  duty,  if  he  wishes 
to  make  any  distinction  in  his  sale  between  the  two  classes,  to  ask 
the  person  in  possession  to  point  them  out  so  that  they  can  be  dis- 
tinguished from  each  other.    Sharp  v.  Lamrj,  37  App.  Div.  136. 


398  Makshai.s.  §§305,306. 

Liability  to  execution  creditor. —  See  §  270,  and  notes. 

Mandate  defined.— See  §  3343,  subd.  2,  Code  Civ.  Proc. 

Id.;   direction  and  execution  of. —  See  §  339,  Code  Civ.  Proc. 

Id.;  when  execution  of,  is  resisted,  sheriff  to  act. —  See  §  3158,  Code 
Civ.  Proc. 

Oysters  around  the  waters  of  Harlem  river;  fines  and  penalties; 
seizure  and  return  by  marshal. —  See  §§  707,  768,  769  of  the  Con- 
solidation Act,  which  remain  in  force  until  changed  by  board  of  alder- 
men. 

Rent,  liability  for. —  Where  a  sheriff  had  levied  upon  a  tenant's  prop- 
erty, refused  to  quit  in  obedience  to  a  warrant  of  dispossession  in 
summary  proceedings,  saying  that  the  landlord  would  get  his  pay,  and 
continued  in  possession  after  service  of  a  notice  that  if  he  did  so,  the 
landlord  would  hold  him  liable  for  use  and  occupation  at  a  specified 
rental, — Held,  that  tl.ese  facts  warranted  a  finding  that  the  relation  of 
landlord  and  tenant  existed,  and  that  the  sheriff  was  liable  for  the 
rent.     Gregg  v.  Tumsen,  42  App.  Div.  148. 

Replevin;    chattel. —  Requisition  to  replevy.     §    100,   this  act. 

Execution  of  same.     §  102,  this  act. 

Return  to  requisition.     §  105,  this  act. 

Exception  to  sureties  may  be  served  on  marshal.     §  106,  this  act. 

Penalty  for  wrong  delivery  by  marshal.     §   112,  this  act. 

Claim  of  title  by  third  person.     §  113,  this  act. 

Action  on  the  undertaking.     §   126,  this  act. 

How  taken  from  a  building. —  See  §§  1701  and  1702,  Code  Civ.  Proc, 
and  notes  under  §  103  of  this  act. 

§  305.  Marshal  to  keep  entry  book  and  indorse,  et  cetera. — 
Every  marshal  shall  keep  a  book  in  which  he  shall  enter 
immediately  upon  the  receipt  thereof  all  the  process  and 
mandates  of  the  court  delivered  to  him  for  execution,  and 
his  disposition  thereof;  and  he  shall  also  endorse  upon  such 
process  or  mandate  the  date  and  the  hour  of  receiving  the 
same. 

Notes  to  section  305. 

This  section  is  new.  No  punishment  or  penalty  is  prescribed  in  this 
section,  if  the  marshal  does  not  obey  or  conform  to  its  provisions. 
We  suppose  the  next  section  is  applicable. 

Mandate  is  defined  by  §  3343,  subd.  2,  Code  Civ.  Proc. 

§  306.  Removal  and  suspension  of  marshals. —  The  mayor 
may  remove  any  marshal,  after  giving  him  an  opportunity 
to  be  heard,  upon  charges  in  writing  preferred  against  such 


§  310.  Appeals.  399 

marshal,  and  filed  with  the  mayor,  and  may,  in  his  discre- 
tion, suspend  said  marshal  from  the  performance  of  his 
duties,  as  such,  pending  a  hearing  upon  the  charges.  Upon 
charges  being  preferred  against  a  marshal  by  a  justice  of 
the  municipal  court,  the  mayor  may  forthwith  cause  notice 
of  suspension  of  such  marshal  to  be  served  upon  him,  and 
such  marshal  shall  thereupon  remain  suspended  until  the 
hearing  and  determination  of  such  charges  by  the  mayor. 

Note  to  section  306. 

This  section  is  taken  from  section  1429  of  the  Charter  (Laws  1897, 
chap.  378),  which  superseded  section  1706  of  the  Consolidation  Act 
(Laws  1882,  chap.  410). 

Note. —  There  are  no  sections    from  section  306  to  310. 

TITLE  IX. 

Appeals. 

Section  310.  When  appeal  may  be  taken. 

311.  When  and  how  taken. 

312.  Service  of  notice  upon  respondent. 

313.  Omission  to  serve  one,  how  supplied;    amendment  when 

allowed. 

314.  Undertaking  to  stay  execution  upon  judgment. 

315.  Exception  to  sureties;  justification. 

316.  Proceedings  how  stayed. 

317.  Return. 

318.  Settlement  of  case  on  appeal. 

319.  When  justice  is  dead,  et  cetera. 

320.  Appeal  when  adverse  party  has  died. 

321.  Proceedings  when  party  dies  pending  appeal. 

322.  Order  of  substitution. 

323.  Restitution  upon  reversal. 

324.  Setting  off  costs  and  recovery. 

325.  Hearing  on  appeal,  dismissal  thereof;  reversal  on  stipula- 

tion. 

326.  Judgment. 

327.  Clerk  appellate   court  to  return  papers. 

§  310.  When  appeal  may  be  taken. —  An  appeal  from  a 
judgment  rendered  in  an  action,  or  a  final  order  made  in 
summary  proceedings  in  the  municipal  court  of  the  city  of 


400  "  Appeals.  §  310. 

New  York,  or  from  orders  as  hereinbefore  provided,  may  be 
taken  to  the  supreme  court.  Such  appeal  shall  be  heard  in 
such  manner  and  by  such  justice  or  justices  as  the  appellate 
division  of  the  supreme  court  in  the  judicial  department, 
embracing  the  district  wherein  the  action  is  brought  shall 
direct,  except  that  the  appellate  division  of  the  second  judi- 
cial department  may  direct  that  such  appeal  may  be  heard 
directly  before  that  court.  The  appellate  court  may  reverse, 
affirm  or  modify  the  judgment,  order  or  final  order  appealed 
from,  and  where  a  judgment,  order  or  final  order  is  reversed, 
may  order  a  new  trial,  in  the  municipal  court  in  the  district 
in  which  the  action  is  brought.  Where  a  judgment,  order 
or  final  order  is  modified  or  a  new  trial  is  ordered,  costs  shall 
be  in  the  discretion  of  the  appellate  court. 

Notes  to  section  310. 

This  section  is  taken  from  the  first  subdivision  of  section  13G7  of  the 
Charter  (Laws  1897,  chap.  378,  as  amended  by  Laws  15)01,  chap.  400), 
which  made  articles  I  and  II  of  title  VIII,  chapter  19,  sections  3044 
to  3002  of  the  Code  of  Civil  Procedure  applicable  to  this  court,  out  of 
which  sections  310  to  328  of"  the  present  act  have  been  constructed. 
Section  1367  Consolidation  Act  was  entitled  '"Appeals;"  this  section 
is  entitled  "  When  appeal  may  be  taken,"  but  many  other  subjects  are 
included,  such  as  hoiv  and  where  the  appeal  shall  be  heard,  the  "  dis- 
position "  the  appellate  court  may  make  of  the  appeal,  in  what  cases 
costs  are  in  the  discretion  of  the  court.  These  provisions  were  con- 
tained in  the  former  section.  The  title  given  to  this  section  as  to  these 
provisions  is  misleading.  The  provision  as  to  the  stenographer's  min- 
utes in  the  former  section  have  been  omitted  in  this  one,  and  are  now 
to  be  found  in  section  353.  "  The  orders  as  herein  provided,"  referred 
to  in  this  section,  will  be  found  in  sections  254  to  258.  Section  253  is 
excluded  from  these  sections  by  the  provisions  contained  in  section  257. 

Section  253  is  entitled  "  Court  may  open  default." 

Section  254  is  entitled  "  Motions  to  set  aside  a  verdict  or  vacate 
or  amend  a  judgment." 

Section  255  is  entitled  "  New  trial ;  fraud  or  newly-discovered  evi- 
dence." This  section  provides  that  from  such  an  order  the  appeal  shall 
lie  as  from  a  judgment  of  this  court. 

Section  256  is  entitled  "  Court  may  impose  conditions  upon  opening 
a  default,  et  cetera,"  which  includes  vacating,  amending,  modifying,  or 
setting  aside  a  judgment. 

Section  257  is  not  entitled  nor  is  it  mentioned  in  the  contents  of 
article  I.     It  prohibits  an  appeal  in  the  first  instance  from  an  order 


§  310.  Appeals.  401 

opening  a  default  and  vacating  a  judgment  entered  thereon.  There  is 
therefore  no  appeal  froin_  such  an  order  in  the  first  instance,  that  ia 
from  the  order  itself,  and  we  take  it  that  the  party  aggrieved  must 
appeal  from  the  judgment  in  order  to  have  the  order  reviewed.  See 
Beebe  v.  Nassau  S.  C.  Co.,  41  App.  Div.  456,  58  N.  Y.  Supp.  769.  See 
also  §  326,  "  Judgment,"  wherein  the  power  of  the  court  on  appeal  is 
again  expressed  and  amplified.  It  may  affirm  or  reverse  in  whole  or 
in  part,  as  to  any  or  all  parties,  for  errors  of  fact  or  law,  and  order  a 
new  trial  where  the  judgment  is  contrary  to  or  against  the  weight  of 
evidence. 

Amount,  correcting,  modifying,  and  reversing  judgment  as  to. — 
Where  the  judgment  is  for  too  large  a  sum,  and  there  is  a  particular 
amount  which  ought  to  be  deducted,  the  court  may  reverse  the  judg- 
ment for  so  much  as  ought  to  have  been  deducted,  and  affirm  it  as  to 
the  residue.  Harris  v.  Bernard,  4  E.  D.  Smith,  195;  Donohue  v.  Henry, 
4  E.  D.  Smith,  162,  165;  La  Motte  v.  Archer,  4  E.  D.  Smith,  46;  Shan- 
non v.  Burr,  1  Hilt.  39. 

Where  a  justice  errs  in  rendering  judgment  for  too  large  a  sum,  it  is 
not  necessary  that  the  appellate  court  should  reverse  the  judgment 
absolutely.  It  may  be  reversed,  unless  the  plaintiff  remits  the  excess. 
6  N.  Y.  97,  104;    Weed  v.  Lee,  50  Barb.  354. 

The  court  on  appeal  has  power  to  modify  the  judgment  by  eliminat- 
ing therefrom  all  provisions  other  than  that  plaintiff  was  entitled  to 
the  amount  found  due  him.     Egan  v.  Laemmle,  5  Misc.  Rep.  224. 

Id.;  increasing  recovery. — The  power  of  the  Appellate  Term  to  modify 
a  judgment  of  this  court  may  be  exercised  to  increase  the  amount  of  the 
recovery,  where  the  record  presents  all  the  necessary  facts  upon  which 
a  final  judgment  depends,  and  discloses  no  errors  of  law.  Ayvard  v. 
Powers,  25  Misc.  Rep.  476,  54  N.  Y.  Supp.  984. 

Bronx  borough,  first  district.—  The  portion  of  Westchester  county 
annexed  to  the  city  and  county  of  New  York  by  chapter  934,  Laws 
1895,  and  which  is  now  embraced  within  the  first  district  of  the  borough 
of  The  Bronx,  still  remains  part  of  the  second  judicial  department,  and 
an  appeal  from  that  court  may  be  brought  directly  before  the  Appel- 
late Division  of  the  Second  Judicial  Department.  McTurck  v.  Foussa- 
dier,  51  App.  Div.  218;  s.  c,  64  N.  Y.  Supp.  962.  See  also  Duckworth 
v.  Cunningham,  26  Misc.  Rep.  403;  s.  c,  56  N.  Y.  Supp.  191. 

Brooklyn,  borough  of. —  Though  an  appeal  may  be  taken  either  to 
the  Special  Term  of  the  Supreme  Court  or  to  the  Appellate  Division,  if 
the  appeal  is  taken  to  the  Special  Term  no  further  appeal  to  the  Ap- 
pellate Division  lies.  Manheim  V.  Seitz,  36  App.  Div.  352,  55  N.  Y. 
Supp.  321. 

.Construction  of  statute. —  The  right  of  appeal  always  to  be  liberally 
construed;   any  construction  that  will  work  a  forfeiture  of  that  right 

26 


402  Appeals.  §  310. 

is  not  to  be  favored.     Ackerman  v.  Emott,  4  Barb.  626;  s.  c,  3  N.  Y. 
Leg.  Obs.  337,   1   Wend.  388,  395. 

In  reviewing  proceedings,  it  is  the  province  of  the  court  to  give  them, 
and  all  the  acts  of  the  parties  upon  trial,  a  fair  and  reasonable  construc- 
tion, such  as  it  may  be  supposed  was  intended  by  the  parties,  or  under- 
stood by  the  court,  and  so  as  to  save,  and  not  destroy,  the  rights  of  the 
parties.  The  same  precision  is  not  to  be  looked  for  either  in  offers  of, 
or  objection  to  evidence,  nor  the  same  care  in  noting  them,  that  may 
be  expected  upon  trials  in  a  court  of  record  or  on  a  formal  bill  of  ex- 
ceptions.   Wilson  v.  Elwood,  28  N.  Y.  117. 

Cross-appeal. —  Both  parties  may  appeal  from  the  same  judgment. 
Glassner  v.  Wheaton,  2  E.  D.  Smith,  352;  Beach  v.  Raymond,  2  E.  D. 
Smith,  406;  Bobbins  v.  Codman,  4  E.  D.  Smith,  316;  Jones  v.  Owen,. 
5  Hun,  399. 

The  respondent  must  also  appeal  to  take  advantage  of  any  error. 
When  this  is  not  done  and  the  return  clearly  shows  that  no  error  was 
committed,  it  will  furnish  no  ground  for  reversal.  Bobbins  v.  Codman, 
4  E.  D.  Smith,  316;  Lee  v.  Schmidt,  13  Abb.  183;  s.  c,  1  Hilt.  537; 
Glassner  v.  Wheaton,  2  E.  D.  Smith,  352;  Berrian  v.  Elmstead,  4  E. 
D.  Smith,  279. 

The  respondent  can  have  no  relief  on  appeal  taken  by  the  other  party. 
On  an  appeal  taken  by  one  party,  the  other  can  have  no  relief.  Glass- 
ner v.  Wheaton,  supra;  Beach  v.  Raymond,  supra;  Rooney  v.  Secoml 
Avenue  R.  R.  Co.,  18  N.  Y.  3C8. 

Costs  on  appeal  to  be  taxed  by  clerk.     See  §  341. 

Default;  judgment. —  An  appeal  lies  from  a  judgment  entered  upon  a 
default.  Spiero  v.  The  Metropolitan  St.  Ry.  Co.,  14  Misc.  Rep.  21.  See 
Allison  v.  The  T.  A.  Snider  P.  Co.,  20  Misc.  Rep.  367;  Szerlip  v.  Baier, 
21  Misc.  Rep.  692. 

A  judgment  by  default  or  affirming  a  judgment  by  default  is  not 
appealable,  because  it  does  not  affect  a  substantial  right.  Keller  v. 
Feldman,  29  Abb.  N.  C.  26;  s.  c,  49  N.  Y.  St.  Rep.  718;  Jacobs  v. 
Zeltner,  9  Misc.  Rep.  455;  Tooker  v.  Booth,  7  Misc.  Rep.  421. 

Order,  appeal  from  opening. —  By  section  257  no  appeal  from  the 
order  is  allowed  in  the  first  instance;  it  seems  it  must  be  taken  from 
the  judgment.     See  notes  to  §  257,  and  notes  to  this  section  above. 

Id.;  denying  a  motion  to  open  default.—  The  order  is  not  appealable. 
The  remedy  is  by  appeal  from  the  judgment.  Beebe  v.  Nassau  S.  C. 
Co.,  41  App.  Div.  456,  58  N.  Y.  Supp.  769. 

Id.;  abuse  of  discretion. —  Where  the  refusal  to  open  a  default  is  an 
abuse  of  discretion  the  order  is  appealable.  Keller  v.  Feldmann,  29 
Abb.  N.  C.  426;  s.  c,  49  N.  Y.  St.  Rep.  718. 

Discretion  is  defined  in   O'Connor   v.   Moscoiritz,   48   How.   451. 

Judgment  in  one's  own  favor. —  A  party  may  have  a  judgment  in 
his  own  favor  reversed,  when  he  has  recovered  a  less  sum  than  the  evi- 


§  310.  Appeals.  403 

dence  shows  lie  is  entitled  to.  Slaman  v.  Buckley,  29  Barb.  290;  Bissell 
v.  Marshall,  0  Johns.  100. 

Jurisdictional  defects. —  An  appeal  may  he  taken  from  jurisdictional 
defects  as  well  as  those  of  irregularity.  Although  a  party  is  at  liberty 
to  treat  a  judgment  or  proceeding  as  void  for  want  of  jurisdiction,  he 
may  also  seek  a  reversal  by  appeal.  Fitch  v.  Devlin,  15  Barb.  47.  See 
also  6  Wend.  0.54.     But  see  Hubbard  v.  Chapin,  28  How.  407. 

Id.;  appeal  not  waived. — Defendant  does  not  waive  his  right  to  ap- 
peal on  the  ground  of  lack  of  jurisdiction,  by  appearing  at  the  trial 
and  introducing  evidence  after  the  ruling''  of  the  justice  retaining  the 
cause.     Lcverson  v.  Zimmerman,  .'31  Misc.  Rep.  042,  04  N.  Y.  Supp.  723. 

Manner  of  hearing  appeals  by  the  Appellate  Term  as  directed  by  the 
Appellate  Division  in  the  First  Judicial  Department.—  By  authority  of 
the  Constitution  of  1894,  article  V,  section  0,  and'  in  accordance  with 
section  3213  of  the  Code  of  Civil  Procedure,  the  justices  of  the  Appel- 
late Division  of  the  Supreme  Court  (First  Judicial  Department),  bor- 
oughs of  Manhattan  and  The  Bronx,  directed  that  appeals  from  the 
Municipal  Court  of  the  city  of  New  York  in  districts  in  the  county  of 
New  York  shall  be  heard  at  the  county  courthouse,  borough  of  Man- 
hattan. 

Manner  of  hearing  appeals  as  directed  by  the  Appellate  Division  in 
the  Second  Judicial  Department. —  By  the  same  authority,  the  justices 
of  the  Appellate  Division  (Second  Judicial  Department),  directed  that 
appeals  from  the  Municipal  Court  in  that  department  shall  be  heard  at 
the  county  courthouse  in  the  city  of  Brooklyn,  county  of  Kings,  borough 
of  Brooklyn. 

Rules  of  the  Appellate  Division  of  the  foregoing  respective  judicial 
departments  will  be  found  on  pages  434,  435. 

Mechanic's  lien  actions,  appeal  in. —  See  Code  Civ.  Proc,  §  3409.  In 
such  action  an  objection  may  be  removed  on  an  appeal  by  a  modifica- 
tion of  the  judgment  for  which  the  court  has  ample  authority. 
Eagan  v.  Lacmmle,  5  Misc.  Rep.  224. 

Orders,  appeals  from,  are  allowed  by  section  257  as  provided  in  sec- 
tions 253  to  257,  except  that  an  appeal  from  an  order  "  opening "  a 
default  is  not  permitted  in  the  first  instance,  and  it  seems  must  be 
from  the  judgment.  See  notes  to  §  257,  and  notes  to  this  section  above. 
And  see  Becbe  v.  Nassau  8.  C.  Co.,  41  App.  Div.  456,  58  N.  Y.  Supp.  709. 

Id.;  discontinuance. —  Where  the  summons  in  an  action  demands  but 
$49,  a  successful  defendant  can  recover  nothing  but  disbursements;  and 
where  there  is  no  proof  that  he  has  incurred  any,  he  is  not  injured  by 
an  order  discontinuing  the  action  without  costs,  and  therefore  he  has 
no  grounds  for  an  appeal  from  the  order.  Miller  v.  Fiss  ct  al.,  21 
Misc.  Rep.  06. 

Id. —  Granting  or  denying  motion  for  hew  trial  on  the  ground  of 
fraud  or  neirhj-discovered  evidence  is  appealable  as  if  from  a  judg- 
ment by  section  255. 


404:  Appeals.  §  311. 

Offer  to  allow  judgment. —  As  to  the  effect  of  an  offer  in  the  court 
below  after  a  removal  on  appeal,  see  Mock  v.  Saile,  52  Hun,  198,  23 
N.  V.   St.   Rep.  307,   17. Civ.  Proc.  Rep.   121. 

Payment  of  judgment  Joes  not  prejudice  an  appeal,  if  paid  simply 
in  submission  to  the  mandate  of  the  court,  and  not  by  way  of  com- 
promise or  agreement  not  to  appeal.  Hardware,  etc.  v.  Young,  27 
Misc.  Rep.  226,  57  N.  \.  Supp.  753. 

Several  claims. —  Where  two  or  more  independent  causes  of  action  or 
items  of  claim  are  in  court,  and  the  judgment  is  right  as  to  one  and 
erroneous  as  to  the  others,  and  this  appears  on  appeal,  it  is  the  duty  of 
the  court  to  reverse  as  to  the  erroneous  and  affirm  as  to  the  legal  part 
of  the  judgment.  8  How.  Pr.  377;  Staats  v.  Hudson  River  R.  R.  Co.,  39 
Barb.  298;  s.  c,  23  How.  Pr.  463;  Decker  v.  Hassel,  26  How.  Pr.  528. 

Second  Judicial  Department  may  direct  that  appeal  be  heard  directly 
before  the  Appellate  Division  in  that  department.  §  310.  See  also 
Mauheim  v.  Beitz,  36  App.  Div.  352,  55  N.  Y.  Supp.  321. 

Summons  not  personally  served,  and  defendant  not  appearing,  he  is 
allowed  to  appeal  within  twenty  days  after  personal  service  upon  him 
of  written  notice  of  entry  of  judgment.  See  §  311,  and  by  §  253,  the 
"  Court  may  open  default." 

§  311.  When  and  how  taken. —  An  appeal  must  be  taken, 
within  twenty  days  after  the  entry  of  the  judgment,  order 
or  final  order  in  the  docket;  except  that  where  a  defendant 
appeals  from  a  judgment  rendered  in  an  action,  wherein  he 
did  not  appear,  and  the  summons  was  not  personally  served 
upon  him,  the  appeal  may  be  taken  within  twenty  days  after 
personal  service  upon  him,  on  the  part  of  the  plaintiff,  of 
written  notice  of  the  entry  of  the  judgment.  An  appeal 
is  taken  by  serving  upon  the  clerk  of  the  court  or  his  suc- 
cessor in  office,  in  the  district  in  which  the  judgment,  order 
or  final  order  was  rendered,  and  upon  the  respondent,  a 
written  notice  of  appeal,  subscribed  either  by  the  appellant 
or  by  his  attorney  in  the  appellate  court. 

Notes  to  section  311. 

This  section  is  taken  from,  and  is  substantially  the  same  as  sections 
3046  and  3047  of  the  Consolidation  Act  (Laws  1882,  chap.  410),  relat- 
ing to  justices'  courts,  with  the  exception  of  the  provisions  as  to  orders, 
the  omission  of  five  years  to  appeal,  subscription  of  the  notice  of  ap- 
peal, and  the  provision  that  the  notice  of  appeal  must  be  served  upon 
the  clerk  of  the  court,  and  not.  upon  the  justice  as  was  done  heretofore. 

The  provision  in  section  3047,  as  to  payment  of  the  costs  of  the  action 


§311.  Appeals.  405 

included  in  the  judgment,  has  heon  omitted.  Tn  section  317  it  is 
assumed  that  it  is  not  omitted,  for  that  section  provides  that  within 
thirty  days  after  service  of  the  notice  of  appeal  "  and  the  payment  of 
the  '  cost  '  and  fees  as  prescribed  in  this  act  "  the  clerk  of  the  court 
must  make  a  return,  but  there  is  no  provision  "  prescribed  in  this  act  " 
for  the  payment  of  the  "  cost "  or  costs. 

Section  347.  subdivision  3,  entitled,  "  Fees  payable  to  clerks,"  pro- 
vides that,  "  For  a  return  on  appeal  from  a  judgment  or  order  two 
dollars  shall  be  paid  to  the  clerk  as  court  fees,"  and  that  is  the  only 
provision  to  be  found  prescribed  in  this  act  to  comply  with  section  317. 

Amendment,  when  allowed. —  See  §  313. 

Appeal  not  in  time. —  If  the  appeal  was  not  taken  in  time,  there  is 
no  appeal  pending,  and  nothing  for  the  appellate  court  to  dismiss. 
Raymond  v.  Richmond,  76  N.  Y.  106;  Benedict,  etc.  v.  Thayer,  82  N. 
Y.  G10:  Carling  v.  Piircell,  3  Misc.  Rep.  55. 

Expiration  of  time. —  The  court  has  no  authority  to  allow  an  appeal 
after  the  time  has  expired.     People  v.  FAdridge,  7  How.  108. 

Extension  of  time  to  appeal. —  The  court  has  no  power  to  extend  the 
time.     Thorn  v.  Roods,  47  Hun,  435. 

The  time  may  be  extended  by  stipulation  between  the  parties.  Bagley 
v.  Jennings,  33  N.  Y.  St.  Rep.  356,  58  Hun,  57,  19  Civ.  Proc.  Rep.  199. 

Irregularity  of  notice  of  appeal  must  be  taken  advantage  of  by  mo- 
tion to  dismiss  the  appeal.  It  will  not  be  considered  on  the  argument. 
Nye  v.  Ayres,  1  E.  D.  Smith,  532;  Partridge  v.  Thayer,  2  Sandf.  227. 
And  so  when  the  notice  of  appeal  is  not  served  in  time.  Mills  v.  Shult, 
2  E.  D.  Smith,  139.  See  §  313,  "  Omission  to  serve  one;  how  supplied; 
amendment,   when   allowed.'' 

Judgment  must  be  appealed  from  in  the  notice  of  appeal,  not  the 
"decision"'  of  the  justice.  Starr  v.  Silverman,  25  Misc.  Rep.  184,  55 
N.   Y.   Supp.   611. 

Notice  of,  when  sufficient. —  Notice  of  appeal,  to  the  effect  that  the 
plaintiff  "  appeals  to  the  Appellate  Division  of  the  Supreme  Court  of 
the  State  of  New  York,  First  Judicial  District," — Held  sufficient  to 
apprise  defendant  and  to  entitle  the  appeal  to  be  heard  by  the  Appel- 
late Term,  an  amendment  being  granted.  Clapp  v.  Sternglanz,  23 
Misc.  Rep.  641,  52  N.  Y.  Supp.  156. 

Notice  of  appeal  from  this  court  "  to  the  Supreme  Court  of  the  State 
of  New  York,"  is  sufficient.  Morris  v.  Hunken,  40  App.  Div.  129,  57 
N.  Y.  Supp.  712. 

Though  under  the  Charter  of  New  York  of  1897,  an  appeal  may  be 
taken  to  either  the  Special  Term  of  the  Supreme  Court  or  the  Appellate 
Division,  from  a  judgment  of  the  Municipal  Court  in  the  borough  of 
Brooklyn,  if  the  appeal  is  taken  to  the  Special  Term,  no  further  appeal 
to  the  Appellate  Division  lies.  Manheim  v.  Seitz,  36  App.  Div.  352, 
55  N.  Y.  Supp.  321. 


40G  Appeals.  §311. 

Id.;  when  not  sufficient. —  Notice  of  appeal  from  the  decision  of  a 
justice  of  this  court,  denying  defendant's  motion  to  dismiss  the  com- 
plaint for  a  direction  of  a  verdict  and  for  a  judgment  for  defendant  on 
his  counterclaim, — Held  to  bring  up  nothing  for  review,  the  judgment 
not  being  appealed  from.  Starr  v.  Silverman,  25  .Misc.  Rep.  7S4,  55 
X.   V.  Sup].,  til  1. 

Omission  to  serve  one;  how  supplied;  amendment,  when  allowed. — 
See    §    313. 

Id.;  default;  summons  not  personally  served. —  Section  2-53  allows 
the  court  to  open  a  "  default;  "  strictly  there  can  be  no  "  defaull  "  on 
the  part  of  a  defendant  when  he  has  not  been  served;  his  remedy  is 
by  appeal,  as  expressed  in  this  section. 

That  a  judgment  entered  by  default  is  not  appealable  and  that  a  party 
must  seek  relief  by  motion  to  the  court  where  the  action  was  com- 
menced, see  Briggs  v.  Bergen,  23  N.  Y.  102;  Otis  v.  Spencer,  16  N.  Y. 
610;  s.  c,  15  How.  Pr.  425;  Thurber  v.  Toimsend,  22  N.  Y.  517;  Perkins 
v.  Famham,  10  How.  Pr.   120;   Maltby  v.  Grane,  1  Keyes,  548. 

Notwithstanding  the  power  possessed  by  this  court  to  open  defaults 
and  vacate  judgments,  an  appeal  lies  to  the  Appellate  Term  from  a 
judgment  by  default  where  there  was  no  personal  service  of  process. 
Allison  v.  The  T.  A.  Snider  P.  Co.,  20  Misc.  Rep.  367;  Szerlip  v.  Baier,  21 
Misc.  Rep.  692.  See  §  3046,  Code  Civ.  Proc.,  and  notes;  Burkhard  v. 
Smith,  19  Misc.  Rep.  31;  Tracy  v.  Shannon,  22  Abb.  N.  C.  136.  See  also 
Edel  v.  McCone,  16  Daly,  216. 

Id.;  judgment  taken  by  default,  opening  a,  appeal  from. —  The  Ap- 
pellate Term  may  in  the  first  instance  determine,  upon  the  opposing 
affidavits,  the  question  of  opening  a  judgment  taken  by  default  against 
a  defendant  who  claims  he  was  not  served  with  the  summons  and  will 
reverse  the  judgment  if  satisfied  on  the  merits ;  and  defendant  is  not 
prejudiced  by  having  paid  the  judgment  simply  in  submission  to  the 
mandate  of  the  court  and  not  by  way  of  compromise,  or  an  agreement 
not  to  appeal.  Empire,  etc.  v.  Young,  27  Misc.  Rep.  226,  57  N.  Y. 
Supp.  753. 

An  appeal  lies  from  a  judgment  taken  by  default  against  defendant 
never  served  with  summons,  under  Code  Civ.  Proc.,  §  3057,  authorizing 
appeals  from  judgments  rendered  upon  default,  where  the  appeal  is 
taken  for  error  of  fact.  Iron  Clad  Mfg.  Co.  v.  Benjamin  E.  Smith  & 
Sons,  28  Misc.  Rep.  172,  59  N.  Y.  Supp.  332. 

Id.;  order,  no  appeal  from. —  An  appeal  does  not  lie  to  the  Appellate 
Term  from  an  order  of  this  court  vacating  a  judgment  against  defend1- 
ant  for  want  of  service  of  summons  or  appearance,  nor  from  an  order 
vacating  a  former  order  and  denying  the  motion  therefor.  Adolph  v. 
Klein,  23  Misc.  Rep.  700,  52  N.  Y.  Supp.  32. 

It  seems  that  defendant  might,  in  such  case,  obtain  relief  by  appeal 
from  the  judgment  under  Code  Civ.  Proc.,   §  3057. 


I  312.  Appeals.  407 

Time  for  appeal. —  The  time  begins  to  run  from  the  time  the  judg- 
ment is  actually  entered,  and  not  from  the  date  of  the  decision  upon 
which  it  was  entered.  Fuchs  v.  Pullman,  2  Daly,  210.  And  see  Buerlin 
v.  Hodges,  19  Civ.  Proc.  Rep.  107;  Dorsey  v.  Pike,  13  Civ.  Proc.  Rep. 
147,  4G  Hun,  112,  11  N.  Y.  St.  Rep.  227;  Young  v.  Whitcomb,  40  Barb. 
615;  Jennings  v.  Miller,  10  Misc.  Rep.  762;  Keller  v.  Strauss,  34  Misc. 
Rep.  194;   s.  c,  G8  N.  Y.  Supp.  777. 

If  the  appeal  was  not  taken  within  the  time  prescribed  by  statute  the 
notice  of  appeal  served  is  a  nullity.   Clapp  v.  Ilawley,  99  N.  Y.  G10. 

Judgment  was  rendered  after  a  trial,  but  was  set  aside  by  the  justice 
on  motion  within  twenty  days  thereafter  and  a  new  trial  ordered,  but 
such  judgment  was  subsequently  vacated.  Held,  that  the  order  setting 
aside  the  judgment  was  a  nullity,  and  that  the  time  to  appeal  ran 
from  the  entry  of  the  judgment.  Zimmerman  v.  Blach,  12  Misc.  Rep. 
158. 

The  day  on  which  judgment  is  rendered  is  to  be  excluded,  and  also 
Sunday  when  that  is  the  last  day.  Dorsey  v.  Pike,  13  Civ.  Proc.  Rep. 
147,  40  Hun,   112,   11  N.  Y.  St.  Rep.  227. 

A  notice  of  appeal  required  to  be  given  within  thirty  days  served  on 
June  27th,  appealing  from  an  order  of  May  27th,  was  in  time.  Gallt 
v.  Finch,  24  How.   193. 

§  312.  Service  of  notice  upon  respondent. —  Service  of  the 
notice  of  appeal  upon  the  respondent  may  be  made,  by  de- 
livering it  in  any  part  of  the  state,  to  the  respondent  per- 
sonally, or  in  one  of  the  following  methods. 

1.  If  the  respondent  is  a  resident  of  the  city  of  New  York, 
by  leaving  it  at  his  residence,  with  a  person  of  suitable  age 
and  discretion.  If  he  is  not  a  resident  of  the  city  of  New 
York,  and  the  person  who  appeared  as  his  attorney  upon  the 
trial  is  a  resident  thereof,  it  may  be  served  upon  the  attor- 
ney, either  personally,  or  by  leaving  it  at  his  office  or  resi- 
dence, with  a  person  of  suitable  age  and  discretion. 

2.  If  service  within  the  city  of  New  York  cannot  be 
made,  with  due  diligence,  upon  the  respondent  personally, 
or  in  the  method  prescribed  in  the  foregoing  subdivision, 
the  notice  of  appeal  may  be  served  upon  him,  by  delivering 
it  to  the  clerk  of  the  court  in  which  the  judgment  was  ren- 
dered, addressed  to  the  respondent. 

Notes  to  section  312. 

This  section  is  the  same  as  section  3048  of  the  Code  of  Civil  Pro- 
cedure, relating  to  justices'  courts,  excepting  the  words  "city  of  New 


408  Appeals.  §§  313,  314. 

York  "  are  substituted  for  the  word  "  county,"  and  "  the  clerk  of  the 
county"  for  "the  clerk  of  the  appellate  court." 

Amendment,  when  allowed. —  See  §  313. 

Appeal  where  adverse  party  has  died. —  See  §  320. 

Manner  of  service. —  See  Wells  v.  Dawson,  7  N.  Y.  St.  Rep.  170,  43 
Hun,  509;  Andrews  v.  Snyder,  6  Civ.  Proc.  Rep.  333;  Bennett  v.  Kenyon, 
5  N.  Y.   St.  Rep.  496. 

Must  be  served  on  opposite  party. —  The  notice  of  appeal  cannot  be 
served  on  the  attorney  where  the  client  resides  in  the  city  of  New 
York.     Earll  v.  Chapman,  3  E.  D.  Smith,  216. 

Omission  to  serve  one;  how  supplied;  amendment,  when  allowed. — 
See  §  313. 

Proceeding  where  party  dies  pending  appeal. —  See  §  321. 

§  313.  Omission  to  serve  one ;  how  supplied ;  amendment  when 
allowed — Where  the  appellant,  seasonably  and  in  good 
faith,  serves  the  notice  of  appeal,  upon  either  the  clerk  or 
the  respondent,  but  omits,  through  mistake,  inadvertence  or 
excusable  neglect,  to  serve  it  upon  the  other,  or  to  do  any 
other  act  necessary  to  perfect  the  appeal,  the  appellate 
court,  upon  proof  by  affidavit  of  the  facts,  may,  in  its  dis- 
cretion, permit  the  omission  to  be  supplied,  or  an  amend- 
ment to  be  made,  upon  such  terms  as  justice  requires. 

Notes  to  section  313. 

This  section  is  taken  from  section  3049  of  the  Code  of  Civil  Pro- 
cedure, relating  to  justices'  courts,  except  the  word  "  clerk  "  is  substi- 
tuted for  "  justice." 

Amending  notice  of  appeal. —  Amending  notice  of  appeal  is  discretion- 
ary with  the  court.  See  as  to  when  allowed:  Hem  v.  Roods,  14  N.  Y. 
St.  Rep.  345,  47  Hun,  433;  Reilly  v.  Murray,  6  N.  Y.  St.  Rep.  720;  Mc- 
Carthy v.  Crowley,  24  N.  Y.  St.  Rep.  815;  Gutbrecht  v.  Pros.  Pk., 
etc.,  28  Hun,  497;  Boroughs  v.  Norton,  48  How.  132;  Gray  v.  Wolcott, 
5  N.  Y.  St.  Rep.  49,  42  Hun,  653;  Amos  v.  Bradley,  15  Week.  Dig.  262. 

§314.  Undertaking  to  stay  execution  upon  judgment. —  If 
the  appellant  desires  a  stay  of  execution,  he  must  give  a 
written  undertaking,  executed  by  one  or  more  sureties,  ap- 
proved by  a  justice  of  the  court,  to  the  effect  that  if  the 
appeal  is  dismissed,  or  if  judgment  is  rendered  against  the 
appellant  in  the  appellate  court,  and  an  execution  issued 
thereupon  is  returned  wholly  or  partly  unsatisfied;  the  sure- 


§  314.  Appeals.  409 

ties  will  pay  the  amount  of  the  judgment,  or  the  portion 
thereof  remaining'  unsatisfied,  not  exceeding  a  sum  speci- 
fied in  the  undertaking,  which  must  be  at  least  one  hun- 
dred dollars,  and  not  less  than  twice  the  amount  of  the  judg- 
ment, or  if  the  judgment  of  the  court  is  for  the  recovery  of 
a  chattel,  that  the  sureties  will  pay  the  sum  fixed  by  that 
judgment  as  the  value  of  the  chattel,  together  with  the  dam- 
ages, if  any,  awarded  for  the  taking,  withholding,  or  deten- 
tion thereof.  A  copy  of  the  undertaking,  with  a  notice  of 
the  delivery  thereof,  must  be  served  with  the  notice  of  ap- 
peal, and  in  like  manner.  Nothing  in  this  section  shall  be 
construed  to  preclude  a  surety  company  properly  authorized 
by  law  to  act  as  such  surety  or  sureties. 

Notes  to  section  314. 

This  section  is  taken  from  section  3050  of  the  Code  of  Civil  Pro- 
cedure, relating  to  justices'  courts,  which  made  section  1335  of  said 
Code  applicable  to  this  court.  This  latter  section  has  been  omitted 
from  this  one  and  is  made  the  next  section.  The  words  "  with  a  notice 
of  the  delivery  thereof  "  doubtless  means  delivery  to  the  clerk  for  filing. 
The  next  section  uses  the  words  "  with  notice  of  the  filing  thereof." 
Any  justice  of  this  court  may  now  approve  the  undertaking,  instead  of 
as  formerly  only  the  justice  who  rendered  the  judgment,  or  a  judge  of 
the  appellate  court. 

The  construction  of  section  3050  of  the  Code  of  Civil  Procedure,  in- 
cluding and  making  applicable  section  1335  of  the  Code  of  Civil  Pro- 
cedure, was  decided  in  Haicley  v.  Kramer,  35  Misc.  Rep.  444,  71  N.  Y. 
Supp.   948. 

Amendment  of  undertaking  can  only  be  had  with  consent  of  the 
sureties.  Langley  v.  Warren,  1  N.  Y.  606;  s.  c,  3  How.  Pr.  363;  1 
Code  Rep.  Ill;  Wilson  v.  Allen,  3  How.  Pr.  369.  Consult  however 
Wood  v.  Kelly,  2  Hilt.  334;  Irwin  v.  Muir,  13  How.  Pr.  409;  s.  c,  4 
Abb.  Pr.  133.     See  Robinson  v.  Moran,  23  Week.  Dig.  326. 

Duty  of  justice  to  approve  undertaking. —  Where  sureties  in  an  un- 
dertaking are  sufficient  in  law,  the  justice  is  judicially  bound  to  ap- 
prove the  undertaking.  A  judge  should  have  no  private  reason ;  it 
must  be  a  judicial  reason  and  not  an  arbitrary,  whimsical,  capricious 
reason.     O'Connor  v.   Moschowitz,  48  How.  451. 

Exception  to,  and  justification  of,  sureties. — By  section  70  of  this 
act,  sections  106  to  110  and  sections  127  and  128  are  made  applicable 
to  undertakings,   sureties,  and  justification. 

Mistakes,  omissions,  defects,  irregularities,  and  general  rules  affect- 
ing affidavits,  bonds,  and  undertakings. —  See  notes  to  §  1,  subd.  3. 


410  Appeals.  §§  315,  316. 

What  is  sufficient  execution  of  the  undertaking. —  See  Weisbrod  v. 
M argued,  s  Abb.  X.  C.  243. 

§  315.  Exception  to  sureties. —  The  respondent  or  his  at- 
torney, may,  within  five  days  after  the  service  of  a  copy  of 
the  undertaking  with  notice  of  the  filing  thereof,  serve  upon 
the  appellant  <>r  his  attorney,  a  written  notice  that  he  ex- 
cepts to  the  sufficiency  of  the  sureties.  AYithin  five  days 
thereafter,  the  sureties,  or  other  sureties,  in  a  new  under- 
taking to  the  same  effect,  must  justify  before  the  court  in 
the  district  in  which  the  judgment  was  rendered  or  final 
order  made.  At  least  three  days  notice  of  the  justification 
must  be  given.  If  the  court  finds  the  sureties  sufficient, 
it  must  indorse  its  allowance  of  them  upon  the  undertaking, 
or  a  copy  thereof.  The  effect  of  a  failure  so  to  justify  and 
procure  an  allowance,  is  the  same  as  if  the  undertaking  had 
not  been  given.  The  court  shall  also  have  power,  in  case 
it  shall  be  made  to  appear  to  its  satisfaction,  upon  motion, 
that  the  exception  was  taken  unnecessarily  or  for  purposes 
of  vexation  or  delay,  to  set  the  same  aside  and  approve  the 
undertaking. 

Notes  to  section  315. 

This  section  is  taken  from  section  1335  of  the  Code  of  Civil  Procedure, 
which  was  included  in  section  3050  of  said  Code,  and  made  applicable 
to  this  court,  but  many  radical  changes  in  omissions  have  been  made. 
The  time  limit  has-been  changed;  also  that  it  is  unnecessary  to  approve 
the  undertaking,  and  the  appointment  of  a  referee  to  examine  the 
sureties  have  been  omitted. 

Liability  of  sureties. —  The  undertaking  mentioned  in  this  section 
refers  to  the  final  judgment  in  the  cause,  and  the  sureties  remain  liable 
until  that  is  rendered.  Humerton  v.  Hay,  65  N.  Y.  380;  Lowery  v.  Tew, 
25  Hun,  257. 

The  sureties  are  liable  for  costs  on  dismissal  of  the  appeal,  as  well  as 
where  the  judgment  is  affirmed,  and  they  are  not  released  from  liability 
by  their  failure  to  justify  after  being  excepted  to.  McSpedon  v.  Bouton, 
5  Daly,  30.  See,  however,  Guisburg  v.  Kunz,  60  Hun,  504.  See  to  the 
contrary,  Manning  v.  Gould,  90  N.  Y.  476. 

See  also  notes  to  §  1,  subd.  3. 

§  316.  Proceedings;  how  stayed. —  The  delivery  of  the  un- 
dertaking to  the  clerk  of  the  court  in  the  district  in  which 


§  317.  Appeals.  411 

the  judgment  or  final  order  was  entered,  and  service  of  a 
copy  thereof,  and  of  notice  of  delivery  thereof,  stays  the 
issuing  of  an  execution  upon  the  judgment.  If  the  execu- 
tion has  been  issued,  the  service  of  a  copy  of  the  undertak- 
ing, certified  by  the  clerk  or  accompanied  with  an  affidavit, 
showing  that  it  is  a  copy,  and  that  the  original  has  been  duly 
filed,  upon  the  officer  holding  the  execution,  stays  further 
proceedings  thereunder,  subject  to  the  provisions  of  the 
next  preceding  section. 

Notes  to  section  316. 

This  section  is  taken  from  section  3051  of  the  Code  of  Civil  Procedure, 
relating  to  justices'  courts. 

Effect  of  the  stay. —  All  further  proceedings  upon  the  judgment  are 
stayed  by  the  giving  of  the  undertaking,  but  those  already  hr.d  are  not 
affected  by  it.  If  an  execution  has  been  issued  and  a  levy  made  before 
the  appeal  is  perfected,  no  sale  can  be  had  pending  the  appeal.  The 
levy  is  not  discharged  by  the  appeal,  and  the  appellant  cannot  have 
the  goods  returned  to  him.  Smith  v.  Allen,  2  E.  D.  Smith,  259.  See 
§  1311,  Code  Civ.  Proc. 

Levy  upon  personal  property,  when  superseded  by  appeal. —  When 
appeal  has  been  perfected,  and  the  security  required  to  stay  execution 
of  the  judgment  has  been  given,  or  where  the  security  given  in  this 
court  is  equal  to  that  required  to  perfect  an  appeal  to  the  Court  of 
Appeals,  the  court  may  in  its  discretion,  and  upon  such  terms  as 
justice  requires,  make  an  order  upon  notice  to  the  respondent  and  the 
sureties  in  the  undertaking,  discharging  a  levy  upon  personal  property, 
made  by  virtue  of  an  execution,  issued  upon  the  judgment  appealed 
from.  But  this  section  does  not  authorize  the  discharge  of  a  levy,  made 
by  virtue  of  a  warrant  of  attachment.     See  §  1311,  Code  of  Civ.  Proc. 

§317.  Return. —  The  clerk  of  the  court  or  his  successor 
in  office,  must  within  thirty  days  from  the  service  of  the 
notice  of  appeal  and  the  payment  of  the  cost  and  fees  as 
prescribed  in  this  act,  make  a  return  to  the  appellate  court, 
annex  thereto  the  notice  of  appeal  and  the  undertaking,  if 
any  has  been  delivered  to  him,  and  cause  the  same  to  be  filed 
with  the  clerk  of  the  appellate  court.  The  return  must  con- 
tain all  the  proceedings,  including  the  evidence  and  the 
judgment.  The  stenographer's  minutes  of  the  evidence 
must  be  furnished  to  the  clerk,  by  the  stenographer,  within 
ten  days  after  the  fees  therefor  have  been  paid.     Such  re- 


41-'  Appeals.  §317. 

turn  must  have  indorsed  thereon  the  allowance  of  the  jus- 
tice before  whom  the  action  or  proceeding  was  tried. 

Notes  to  section  317. 

This  section  is  taken  from  section  3053  of  the  Code  of  Civil  Pro- 
cedure, relating  to  justices'  courts. 

There  is  no  provision  for  "  the  payment  of  the  '  costs  '  and  fees  a.* 
prescribed  in  this  act."  It  is  nowhere  prescribed  in  this  act  that  "  the 
cost,"  or  the  costs  are  to  be  paid,  or  to  whom.  Section  347,  subdivision 
3,  is  a  provision  for  the  payment  to  '"  clerks "  of  the  court,  "  for  a 
return  upon  an  appeal  from  a  judgment,  or  order,  two  dollars." 

See  note  to  §  311. 

Amending  or  correcting  return  can  be  done  by  motion  to  the  court. 
Spence  v.  Beck,  1  Hilt.  276;  Kilpatrick  v.  Carr,  2  Abb.  Pr.  117;  Mitchell 
V.  Menkle,  1  Hilt.   142;   Kelly  v.  Browcr,  1  Hilt.  514. 

The  averment  that  it  is  untrue,  or  incorrect,  and  defective  in  its 
statements,  or  that  it  contains  immaterial  matters,  is  insufficient.  Nor 
is  the  fact  that  the  attorney  for  the  defendant  drew  it  up,  and  that 
it  was  afterward  "corrected,  altered, and  fixed"  by  the  justice,  unless 
abuse  is  clearly  shown.  Smith  v.  Johnson,  30  How.  Pr.  374;  Hunter  v. 
Graves,  4  Cow.  437. 

When  it  does  not  state  the  pleadings  in  substance,  or  set  them  forth, 
a  copy  of  them  should  be  annexed  and  referred  to.  Spring  v.  Baker,  1 
Hilt.  526;  Smith  v.  Van  Brunt,  2  E.  D.  Smith,  534. 

Where  it  did  not  show  in  what  manner  a  material  question  in  the 
matter  of  the  admissibility  of  evidence  had  been  disposed  of,  the  case 
must  be  put  over  for  an  amended  return.  Matthews  v.  Fiestel,  2  E.  D. 
Smith,  90. 

Where  it  sets  forth  the  evidence  in  detail,  it  is  to  be  considered  as 
stating  the  whole  testimony,  unless  the  contrary  distinctly  appears. 
Orcutt  v.  Cahill,  24  N.  Y.  578.  The  fact  that  it  was  proved  that  a  for- 
mer trial  has  been  had  between  the  same  parties,  when  the  return  does 
not  show  how  such  trial  terminated,  will  not  Avarrant  the  reversal  of 
the  judgment  upon  an  issue  there,  on  a  plea  of  "  former  judgment." 
Morrill  v.  Whitehead,  4  E.  D.  Smith,  239. 

Id.;  cause  of  action. —  Plaintiff  having  recovered  a  money  judgment 
for  the  last  installments  due  on  a  conditional  sale,  by  default,  the  return 
cannot  thereafter  be  amended  so  as  to  make  the  cause  of  action  con- 
version, though  plaintiff  might  originally  have  sued  therefor.  Mala- 
wista  v.  Malzoni,  35  Misc.  Rep.  295,  71  N.  Y.  Supp.  771. 

Id.;  conflict. —  The  return  must  govern  where  the  affidavits  of  the 
parties  are  in  conflict,  as  to  whether  an  adjournment  was  made  on  the 
18th  or  19th.     Kelly  v.  Brower,  1  Hilt.  514. 

Id.;  voluntary  amendment  by  justice. —  Upon  an  appeal,  the  return 
of  the  justice  should  not  be  altered  or  added  to  by  him  without  applying 


§  317.  Appeals.  413 

for  leave  of  court.  If  he  voluntarily  make  an  amended  or  supplemental 
return,  the  court  may  direct  it  to  be  taken  from  the  files.  Zabriskie  v. 
Wilder,  12  Daly,  527;  s.  c,  67  How.  Pr.  311.  This  case  is  distinguished 
in  Thomas  v.  Whitelegge,  39  N.  Y.  St.  Rep.  89;  s.  c,  14  N.  Y.  Supp.  779 

Id.;  when  too  late. —  It  is  too  late  to  ask  for  an  amendment  of  a 
return  after  the  appellate  court  has  intimated  or  announced  its  decision 
on  the  questions  presented  by  the  return  as  filed.  Warren  v.  Campbell 
et  al.,  9  Daly,  762;  s.  c,  14  N.  Y.  Supp.  165;  Persons  v.  Campbell  et  al., 
9  Daly,  762. 

Attacking  return. —  Where  the  return  to  an  appeal  taken  on  the 
ground  of  an  unauthorized  appearance  shows  that  the  appellant  was 
personally  present  in  court  and  examined  as  a  witness  in  behalf  of  the 
defendants,  there  being  but  one  other  defendant  beside  himself,  such 
return  cannot  be  attacked  by  affidavits.  Jennings  v.  Miller,  10  Misc. 
Rep.  762. 

Conclusive  on  argument  of  appeal. —  The  appeal  should  not  be  argued 
until  the  return  is  complete,  for  it  is  conclusive  as  to  what  transpired 
at  the  trial.  McAllister  v.  Sexton,  4  E.  D.  Smith,  41;  Kilpatrick  v. 
€arr,  3  Abb.  Pr.  117. 

The  appellate  court  cannot  look  beyond  the  return  —  although  the  ap- 
pellant produces  affidavits  of  facts  which,  had  they  appeared  in  the 
return,  would  require  a  reversal  of  judgment.  Trust  v.  Delaplaine,  3 
E.  D.  Smith,  219.  The  appellate  court  is  controlled  by  the  return,  in 
determining  what  instructions  the  charge  contained.  Garrison  v. 
Pearce,  3  E.  D.  Smith,  255;  Barbar  v.  Stettheimer,  13  Hun,  19c 

Contradictory  statement  in  return;  reversal. —  The  return  stated 
that  judgment  was  rendered  in  favor  of  the  plaintiff,  "  as  set  forth  in 
the  judgment  annexed."  No  judgment  was  annexed,  except  a  memoran- 
dum reciting  certain  items  of  claim,  and  concluding:  "Therefore,  judg- 
ment for  defendant,  that  he  retain  possession  of  one  roan  horse  to  satisfy 
a  lien  of  $25."  Held,  that  such  judgment  would  be  reversed.  Lees  v. 
Pitney,  27  N.  Y.  Supp.  972. 

Contents  of  return. —  The  return  should  set  forth  when  the  summons 
or  process  was  returnable,  the  day  on  which  issue  was  joined,  the  ad- 
journments, if  any,  the  date  of  the  trial,  and  the  day  whereon  judgment 
was  rendered  (Peters  v.  Diossy,  3  E.  D.  Smith,  115)  ;  the  pleadings  and 
all  the  evidence,  documentary  and  parol,  used  on  the  trial'.  Ogden  v. 
Sanderson,  3  E.  D.  Smith,  167;  Roulston  v.  McClelland,  2  E.  D.  Smith, 
60.  See  also  Smith  v.  Tan  Brunt,  2  E.  D.  Smith,  534;  Orcutt  v. 
Cahill,  24  N.  Y.  578;  Low  v.  Payne,  4  N.  Y.  247;  Prosser  v.  Seen, 
5  Barb.'  607;  McCaffrey  v.  Kelley,  2  Sandf.  637;  Belsham  v.  Coolie, 
1  E.  D.  Smith,  213.  Where  judgment  is  rendered  without  proof, 
and  on  default,  upon  a  return  of  the  personal  service  of  a  summons 
and  complaint,  it  should  show  that  a  copy  of  the  complaint  was 
served,  verified  by  the  party  pleading,  or  his  agent  or  attorney,  as  the 


414  Appeals.  §317. 

case  may  be.  A  mere  return  that  a  summons  was  served  with  the  com- 
plaint is  not  sufficient.  Spring  v.  Baker,  1  Hilt.  .~>2t',.  Where  objection 
is  taken  to  the  sufficiency  of  the  summons,  it  should  properly  set  forth 
the  summons,  instead  of  giving  a  mere  abstract  of  it.  A  copy  of  the 
summons  would  have  been  the  proper  return  to  submit.  Silkman  V. 
Boiger,  4  E.  J).  Smith,  236. 

The  return  must  sh<  w  what  judgment  was  rendered,  or  the  appeal 
will  be  dismissed  with  costs.  Woodside  v.  Pender,  2  E.  D.  Smith,  300. 
Contra,  Klenck  v.  De  Forrest,  3  Code   Rep.   185. 

Where  an  account  was  demanded  on  joining  issue,  the  return  should 
show  that  it  was  ordered  to  be  exhibited  or  stated,  or  an  objection  to 
evidence  based  upon  the  demand,  and  neglect  to  furnish  cannot  prevail 
upon  appeal.     Rouen  v.  Rosenthal,  22  Misc.  Rep.  143. 

Defective  return. —  If  the  return  has  not  the  notice  of  appeal  at- 
tached, or  does  not  show  what  judgment  was  rendered,  the  appeal  will 
b3  dismissed.  Cabre  v.  Sturges,  1  Hilt.  100;  Davis  v.  X.  Y.  &  lyric  A'.  R. 
Co.,  1  Hilt.  543;  Bush  v.  Oennison,  14  How.  Pr.  307;  Woodside  v.  Pen- 
der, 2  E.  D.  Smith  390;  Klenck  v.  De  Forrest,  3  Code  Rep.  185. 

Affidavits  cannot  be  used  to  support  a  defective  return.  McAllister 
v.  Sexton,  4  E.  D.  Smith,  41;  Hyland  v.  Sherman,  2  E.  D.  Smith,  235; 
Trust  v.  Delaplaine,  3  E.  D.  Smith,  219;  Rawson  v.  Grow,  4  E.  D.  Smith, 
18;  Kirkpatrick  v.  Carr,  3  Abb.  Pr.  117.  Xor  to  modify  or  impeach 
it.  Lynsky  v.  Pendergast,  2  E.  D.  Smith,  43;  Kirkpatriek  v.  Carr,  3 
Abb.  Pr.  117;  Capewell  v.  Ormsby,  2  E.  D.  Smith,  180;  Bates  v.  Conk- 
ling,  10  Wend.  289.  The  rule  is  the  same  with  regard  to  the  charge 
to  the  jury.     Garrison  v.  Pierce,  3  E.  D.  Smith,  255. 

Denial  of  service  of  summons. —  Section  3040,  Code  of  Civil  Procedure 
(now  section  311  of  this  act),  allows  an  appeal  "wherein  he  did  not 
appear  and  the  summons  was  not  personally  served  upon  him."  In  such 
a  case  a  return  by  the  justice,  stating  whether  the  defendant  appeared 
or  not,  is  indispensable.  Jennings  v.  Miller,  Bischoff.  J.,  Special  Term, 
N.  Y.  Law  Journal,  Dec.  20,  1894,  afterward  heard  on  the  return  and  re- 
ported in  10  Misc.  Rep.  762.  See  a'so  Vallen  v.  McGuire,  18  N.  Y.  St. 
Rep.  410,  49  Hun,  594;  Gibbons  v.  Van  Alstine,  29  N.  Y.  St.  Rep.  461. 

Evidence  excluded. —  A  party  may  compel  the  return  of  e\  idence 
stricken  out,  in  order  that  he  may  bring  more  distinctly  before  the  ap- 
pellate court  the  points  relied  upon  for  a  reversal  of  the  decision. 
Smith  v.  Johnston,  30  How.  Pr.  374. 

Id.;  omission  of,  in  return;  remedy. —  A  judgment  cannot  be  reversed 
on  appeal,  on  the  alleged  ground  that  it  is  without  evidence  to  support 
it,  or  that  it  is  against  the  evidence,  or  the  weight  of  evidence,  if  it 
affirmatively  appears  from  the  justice's  return  that  material  evidence 
adduced  on  the  trial  is  omitted,  and  that  the  respondent  could  not 
have  caused  the  omission  to  be  supplied  by  means  ot  an  amended  return. 
In  such  case,  appellant  should  make  application  on  the  argument  of  the 


§  317.  ArPEALs.  415 

appeal,  under  sections  305C  and  3213  of  the  Code,  to  be  allowed  to  es- 
tablish the  lost  evidence  by  affidavits  or  the  examination  of  witnesses. 
McGovern  v.  Eldredge,  48  N.  Y.  St.  Rep.  092. 

Extension;  time  to  file  return. —  The  time  to  file  the  return  on  ap- 
peal from  a  final  order  in  summary  proceedings  to  recover  possession 
of  premises  alleged  to  be  used  as  a  bawdy-house  will  not  be  extended 
where  the  appeal  is  taken  only  upon  technical  grounds,  it  being  con- 
ceded that  the  evidence  establishes  the  charge,  and  the  only  excuse  of- 
fered is  that  the  attorney  was  engaged  in  various  courts  and  places,  and 
the  want  of  a  male  stenographer  to  transcribe  the  notes.  Goelet  et  al. 
v.  Julia  Laiclor  et  al.,  19  Misc.  Rep.  540. 

Failure  to  file  return. —  A  motion  may  be  made  to  dismiss  the  appeal. 
See  Rule  III,  Supreme  Court,  Appellate  Term  (to  be  found  under  this 
section). 

False  return;  liability  of  justice. —  The  justice  is  liable  for  a  false 
return,  for  any  damages  which  a  party  may  sustain.  He  acts  minis- 
terially. McDonnell  v.  Buffum,  31  How.  Pr.  154;  Houghton  v.  Swart- 
out,  1  Den.  589;  Tompkins  v.  Sands,  8  Wend.  402;  Cunningham  v.  Buck- 
lin,  8  Cow.  178;  Scott  v.  Rushman,  1  Cow.  202. 

Fee  for  return,  nonpayment  of,  is  ground  for  dismissal,  when  the 
return  is  not  made  for  that  reason.  Van  Henson  v.  Kirk  pat  rick,  5 
How.  Pr.  422.     See   §   347,  subd.  3. 

Further  return. —  There  is  no  express  provision  for  a  further  return 
as  was  formerly  provided  by  section  3055  of  the  Code  of  Civil  Procedure ; 
such  return  can  probably  be  enforced  under  that  section  by  section  20 
of  this  act,  or  by  motion  for  an  amended  return. 

Motion  to  dismiss  appeal. —  Rule  III  of  the  Supreme  Court  for  the 
Appellate  Term  provides  for  the  making  of  such  motion,  and  that  it 
be  made  at  the  Appellate  Term. 

Where  the  appellant,  although  given  an  opportunity  to  do  so,  fails 
to  procure  a  return  which  includes  the  evidence,  a  motion  to  dismiss 
the  appeal  on  the  ground  of  failure  to  procure  the  filing  of  the  return 
should  be  granted.     Orlando  v.  Piano,  20  Misc.  Rep.  369. 

Order  to  show  cause. —  Where  a  party  obtains  an  order  requiring  a 
justice  to  amend  his  return  or  show  cause,  the  justice  is  authorized 
to  immediately  file  his  amended  return,  and  this  alternative  portion 
of  the  order  is  not  an  adjudication  in  advance  by  the  court  upon  a 
contested  motion.  Where  a  justice  is  served  with  an  order  to  make 
an  amended  retr.rn  to  his  return  on  appeal,  or  show  cause,  and  make 
his  return,  it  cannot  be  vacated  on  the  ground  that  the  order  was 
obtained  through  irregularity  or  fraud ;  the  remedy  of  the  party  ag- 
grieved is  to  move  for  a  further  amended  return,  or  to  proceed  against 
the  justice  for  a  false  return.  An  order  requiring  a  justice  to  make 
an  amended  return  or  show  cause,  returnable  in  more  than  eight 
days,  is  not  irregular  under  section  780  of  the  Code.     Thomas  et  al.  v. 


416  Appeals.  §318. 

Whitelegge.  39  N.  Y.  St.  Rep.  89;  s.  c,  14  N.  Y.  Supp.  779,  distin- 
guishing Zabriskie  v.  Wilder,  12  Daly,  527. 

Original  or  certified  copy;  lost  return. —  An  original  or  a  certified 
copy  of  the  return  must  be  produced  on  the  argument,  or  the  court 
will  refuse  to  hear  the  appeal.  In  case  it  is  lost,  a  new  one  should 
be  procured.     Smith  v.   Van   Brunt,  2   E.  D.  Smith,  534. 

Rules  as  to  return  on  appeal. —  The  justices  of  the  Appellate  Divi- 
sion of  the  Supreme  Court  have  made  seven  rules  for  the  hearing  of 
appeals  by  the  Appellate  Term.  It  will  be  observed  that  these  rules 
are  not  made  by  the  justices  of  the  Appellate  Term.  See  these  rules, 
pp.  434,  435.  Rule  II  provides  that  no  appeal  shall  be  placed  upon  the 
calendar  unless  the  return  is  filed  eight  days  before  the  term  commences. 
Rule  III  provides  if  the  return  is  not  filed  as  prescribed  in  section  3053 
of  the  Code  of  Civil  Procedure  (now  this  section) ,  the  respondent  may 
move  to  dismiss  the  appeal,  and  if  the  court  below  shall  not  have  made 
the  return,  the  appellant  may  move  on  the  first  day  of  the  term  to 
compel  such  return  by  attachment.     See  also  §§  318  and  325. 

Stenographer's  minutes  lost. —  "Where  the  return  of  the  justice  did 
not  contain  any  of  the  evidence,  the  stenographer's  minutes  having 
been  lost  or  destroyed, —  Held,  that  the  parties  could  submit  affidavits 
as  to  the  evidence  offered  at  the  trial,  in  accordance  with  the  Cod8 
of  Civil  Procedure,  section  3056.  Walker  v.  Bacrmann,  47  App.  Div. 
635,  62  N.  Y.  Supp.  414.       - 

Sufficient. —  A  certificate  on  appeal  from  this  court,  that  counsel 
summed  up  the  case  "  and  thereupon  submitted  to  the  jury  for  its 
decision,"  —  Held  sufficiently  to  show  that  the  issues  were  determined 
by  the  jury.  Morgan  v.  Metropolitan  Street  Ry.  Co.,  51  App.  Div.  633, 
64  iST.  Y.  Supp.  826. 

Unauthorized  appeal. —  A  motion  made  to  dismiss  an  appeal  of  this 
character  must  be  granted.     Robb  v.  Osgoodby,  20  Misc.  Rep.  622. 

§  318.  Settlement  of  case  on  appeal. —  Immediately  upon  re- 
ceiving the  minutes  from  the  stenographer,  as  provided  in 
the  next  preceding  section,  the  clerk  of  the  court  shall  cause 
notice  of  that  fact  to  be  sent  to  the  attorney  for  the  appel- 
lant, or  to  the  appellant  if  he  has  not  appeared  by  attorney. 
The  appellant  or  his  attorney  shall  then  procure  the  case  to 
be  settled  on  a  written  notice  of  at  least  three  days,  served 
in  the  manner  provided  for  the  serving  of  a  notice  of  ap- 
peal, or  on  the  attorney  for  the  respondent,  and  made  re- 
turnable before  the  justice  who  tried  the  case,  in  the  court 
house  in  the  district  in  which  said  justice  may  thon  be  sit- 
ting.    Said  justice  shall  thereupon  within  five  days,  settle 


§§  319,  320.  Appeals.  417 

the  case  or  exceptions  upon  it,  if  there  be  any,  and  indorse 
the  return,  as  provided  in  the  next  preceding  section.  After 
a  justice  is  out  of  office,  he  may  settle  the  case  or  exceptions 
or  make  any  return  of  proceedings  had  before  him  while  he 
was  in  office,  and  may  be  compelled  so  to  do  by  the  appel- 
late court. 

Notes  to  section   318. 

This  section  is  new.  The  portion  relating  to  the  settlement  of  a 
case  on  appeal,  after  a  justice  is  out  of  office,  is  taken  from  section  2.3 
of  the  Code  of  Civil  Procedure.  See  §  3054,  Code  Civ.  Proa,  en- 
titled "  When  justice  has  gone  out  of  office,"  relating  to  justices' 
courts,  which  is  similar. 

This  section  is  not  intended  to  assimilate  the  practice  in  this  court 
to  that  in  courts  of  record,  for  it  will  be  observed  that  there  is  no 
provision  for  a  proposed  case,  or  proposed  amendments.  When  the 
stenographer's  minutes  have  been  furnished  to  the  clerk,  he  shall 
immediately  notify  the  appellant  of  that  fact,  and  the  appellant  shall 
notify  the  respondent.  The  parties,  or  their  attorneys,  then  appear 
before  the  justice,  and  they  are  heard  as  to  the  settlement  of  the  case; 
this  will  make  the  case,  or  return  on  appeal,  more  perfect  than  here- 
tofore, when  the  justice  alone,  and  unaided,  made  up  the  return,  and 
will  prevent  multiplicity  of  motions  to  correct  or  amend  the  return. 
The  parties  have  had  their  day  in  court  before  the  justice  as  to  what 
the  return,  or  case  on  appeal,  shall  contain,  and  as  to  its  correctness, 
which  was  not  the  case  heretofore,  and  this  should  end  all  further 
hearings  on  motion  about  the  contents  or  correctness  of  the  return. 

See  also  Rule  20,  "Rules  of  Practice,"  p.  111. 

§  319.  When  justice  is  dead,  et  cetera. —  If  the  justice  dies, 
becomes  a  lunatic,  absconds,  removes  from  the  state,  or 
otherwise  becomes  unable  to  make  the  return,  the  appellate 
court  may  receive  affidavits,  or  examine  witnesses,  as  to  the 
evidence  and  other  proceedings  taken,  and  the  judgment 
rendered,  before  the  justice;  and  may  determine  the  appeal, 
as  if  a  return  had  been  duly  made  by  the  justice. 

Note   to   section   319. 

This  section  is  the  same  as  section  3056  of  the  Code  of  Civil  Pro- 
cedure, relating  to  justices'  courts. 

§  320.  Appeal  when  adverse  party  has  died —  Where  the 
adverse  party  has  died,  since  the  making  of  the  order,  or  the 

27 


418  Appeals.  *    §321. 

rendering  of  the  judgment  appealed  from,  or  where  the 
judgment  appealed  from  was  rendered,  after  his  death,  in 
a  case  prescribed  by  law,  an  appeal  may  be  taken,  as  if  he 
was  living;  but  it  cannot  be  heard,  until  the  heir,  devisee, 
executor,  or  administrator,  as  the  case  requires,  has  been 
substituted  as  the  respondent  or  appellant.  In  such  a  case 
an  undertaking  required  to  perfect  the  appeal,  or  to  stay 
the  execution  of  the  judgment  or  order  appealed  from, 
must  recite  the  fact  of  the  adverse  party's  death;  and  the 
undertaking  enures,  after  substitution  to  the  benefit  of  the 
person  substituted. 

Note   to  section   320. 

This  section  is  substantially  the  same  as   section   1297   of  the  Code 
of  Civil  Procedure. 


§  321.  Proceedings  when  party  dies  pending  appeal. — 
Where  either  party  to  an  appeal  dies  before  the  appeal  is 
heard,  if  an  order,  substituting  another  person  in  his  place, 
is  not  made  within  three  months  after  his  death,  the  court 
in  which  the  appeal  is  pending,  may,  in  its  discretion,  make 
an  order  requiring  all  persons  interested  in  the  decedents 
estate,  to  show  cause  before  it  why  the  judgment  or  order 
appealed  from  should  not  be  reversed  or  affirmed  or  the 
appeal  dismissed,  as  the  case  requires.  The  order  must 
specify  a  day  when  cause  is  to  be  shown,  which  must  not 
be  less  than  six  months  after  making  the  order;  and  it  must 
designate  the  mode  of  giving  notice  to  the  persons  interested. 
Upon  the  return  day  of  the  order,  or  at  a  subsequent  day, 
appointed  by  the  court  if  the  proper  person  has  not  been 
substituted,  the  court,  upon  proof  by  affidavit,  that  notice 
has  been  given,  as  required  by  the  order,  may  reverse  or 
affirm  the  judgment  or  order  appealed  from,  or  dismiss  the 
appeal,  or  make  such  further  order  in  the  premises  as  the 
case  requires. 

Note   to  section   321. 

This  section  is  taken  from  section  1298  of  the  Code  of  Civil  Pro- 
cedure. 


§§  322,  323.  Appeals.  419 

§  322.  Order  of  substitution. —  Where  personal  service  of 
notice  of  application  for  an  order  has  been  made,  within 
the  city,  upon  the  proper  representative  of  the  decedent, 
an  order  of  substitution  may  be  made,  upon  the  application 
of  the  surviving  party. 

Note   to   section   322. 

This  section  is  taken  from  section  1299  of  the  Code  of  Civil  Pro- 
cedure. 

§  323.  Restitution  upon  reversal. —  Where  the  judgment  or 
final  order  is  reversed  or  modified,  the  appellate  court  may 
make  or  compel  restitution  of  property  or  of  a  right,  lost 
by  means  of  the  erroneous  judgment ;  but  not  so  as  to  affect 
the  title  of  a  purchaser,  in  good  faith  and  for  value,  or 
property  sold  by  virtue  of  a  warrant  of  attachment  in  the 
action,  or  an  execution  issued  upon  the  judgment.  In  that 
case,  the  appellate  court  may  compel  the  value,  or  the  pur- 
chase price  to  be  restored,  or  deposited  to  abide  the  event 
of  the  action,  as  justice  requires.  Six  days'  notice  of  an 
application  for  an  order  for  restitution  must  be  given;  and, 
if  the  application  is  granted  before  judgment,  the  proper 
direction  may  be  included  therein. 

Notes   to  section   323. 

This  section  is  the  same  as  section  3058  of  the  Code  of  Civil  Pro- 
cedure, relating  to  justices'  courts,  except  that  the  words  "  of  the  jus- 
tice "  are  omitted. 

Action. —  Section  3058  of  the  Code  of  Civil  Procedure  was  enacted 
to  furnish  additional  means  of  enforcing  the  common-law  right  of 
restitution.  The  remedies  prescribed  therefor  are  not  exclusive,  and 
a  party  entitled  to  restitution  may  obtain  relief  by  action.  Huebler 
V.  Myers,  132  N.  Y.  363. 

Notice  of  motion. —  An  application  for  restitution  of  the  amount  of 
a  judgment  erroneously  rendered  against  defendant  in  this  court,  and 
paid,  made  on  appeal  from  the  judgment,  cannot  be  entertained,  as 
six  days'  notice  must  be  given  under  Code  Civ.  Proc,  §  3058.  Darcey 
v.  Steger,  23  Misc.  Rep.   145,   50  N.  Y.   Supp.  638. 

Practice  in  such  cases  explained.  See  dishing  v.  Vandcrhilt,  7  Daly, 
512.  See  also  Marvin  v.  Brewster  Mining  Co.,  56  N.  Y.  671;  Estus  v. 
Baldicin.  9  How.  80. 


420  Appeals.  §§324,325. 

§  324.  Setting  off  costs  and  recovery. —  If,  upon  the  appeal, 
a  sum  of  money  is  awarded  to  one  party,  and  costs  are 
awarded  to  the  adverse  party,  the  appellate  court  must  set 
off  the  one  against  the  other,  and  render  judgment  for  the 
balance. 

Note  to  section  324. 

This  section  is  the  same  as  section  3059  of  the  Code  of  Civil  Pro- 
cedure, relating  to  justices'   courts. 

§  325.  Hearing  on  appeal,  dismissal  thereof;  reversal  on 
stipulation. —  Within  twenty  days  after  the  service  of  a  no- 
tice of  appeal  on  the  respondent,  he  may  serve  upon  the 
appellant  or  his  attorney,  a  written  stipulation  that  the  judg- 
ment appealed  from  may  be  reversed  with  five  dollars'  costs 
and  disbursements  of  the  appeal,  and  thereafter  no  further 
steps  shall  be  taken  in  such  appeal,  except  to  enter  judgment 
in  pursuance  of  such  stipulation  for  the  enforcement  thereof; 
in  ease  such  stipulation  shall  not  be  served,  the  appeal  may 
be  brought  to  a  hearing  in  the  appellate  court  at  any  term 
thereof,  at  which  such  an  appeal  can  be  heard,  held  after 
the  return  is  filed,  upon  a  notice  by  either  party,  of  not  less 
than  eight  days.  It  must  be  placed  upon  the  calendar,  and 
must  continue  thereupon  without  further  notice  until  it  is 
finally  disposed  of.  If,  after  being  regularly  placed  upon 
the  calendar,  neither  party  brings  it  to  a  hearing  before  the 
end  of  the  second  term  thereafter  at  which  it  might  lie 
noticed  for  hearing  and  heard,  the  court  must  dismiss  the 
appeal  unless  it  directs  the  same  to  be  continued  for  cause 
shown. 

Notes  to  section  325. 

This  section  is  taken  from  section  30f>2  of  the  Code  of  Civil  Pro- 
cedure, relating  to  justices'  courts. 

Motion  to  dismiss  appeals  must  be  made  before  the  Appellate  Term 
as  required  by  Rule  III  of  the  Supreme  Court,  Appellate  Term,  to  be 
found  on  p.  434. 

Points  should  be  furnished  by  counsel  on  the  submission  of' an  appeal, 
and  the  court  referred  to  such  authorities  as  are  relied  on.  De  Agreda 
v,  Faulberg,  3  E.  I).  Smith.  178.  Where  no  papers  specifying  the 
grounds  of  appeal,  and  no  points  or  arguments  are  presented  on  behalf 
of  the  appellant,  calling  the  attention  of  the  court  to  any  grounds  for 


§§  326,  327.  _  Appeals.  421 

sustaining  the  appeal,  the  court,  if  it  sees  that  justice  has  apparently 
been  done,  will  not  be  ingenious  to  discover  errors  in  the  proceedings 
below,  but  will  rather  assume  that  if  the  appellant  or  his  counsel  can- 
not discover  and  point  out  errors,  none  exist.  Suydam  v.  Munson,  2 
E.  D.  Smith,  198. 

Where,  on  appeal  from  a  judgment,  the  appellant's  counsel  in  his 
points  takes  no  notice  of  the  exceptions  taken  on  the  trial,  the  court 
may  refuse  to  consider  them.     Mierson  v.   Mayor,  0   Daly,   74. 

Ready  for  argument. —  The  appellate  court  requires  both  parties  to 
be  ready  for  argument  when  the  case  is  called.  Engagements  of  coun- 
sel are  not  considered  an  excuse  for  postponing  the  hearing.  Tryon 
v.  Jennings,  12  Abb.  Pr.  33;  s.  c,  22  How.  Pr.  421;  Rule  III,  to  be 
found  on  p.  434. 

Waiver  of  motion  to  dismiss. —  When  the  respondent  generally  ap- 
pears in  the  appellate  court,  and  notices  the  appeal  for  argument,  these 
are  positive  acts  of  submission  to  that  tribunal,  inconsistent  with  a 
claim  that  the  appeal  was  not  brought  in  time.  In  such  a  case  he  can- 
not have  the  appeal  dismissed.  Pearson  v.  Lovejoy,  35  How.  Pr.  193; 
s.  c,  53  Barb.  407. 

§  326.  Judgment. —  In  a  case  specified  in  this  act,  the  ap- 
peal must  be  heard  upon  the  original  papers,  or  a  certified 
copy  thereof,  and  a  copy  or  copies  thereof  need  not  be  fur- 
nished for  the  use  of  the  court.  The  appellate  court  must 
render  judgment  according  to  the  justice  of  the  case,  without 
regard  to  technical  errors  or  defects  which  do  not  affect  the 
merits.  It  may  affirm  or  reverse  the  judgment  of  the  mu- 
nicipal court,  in  whole  or  in  part,  and  as  to  any  or  all  of  the 
parties,  and  for  errors  of  law  or  of  fact,  and  where  the  judg- 
ment is  contrary  to  or  against  the  weight  of  evidence,  the 
appellate  court  may,  upon  its  reversal  of  a  judgment,  order 
a  new  trial  as  prescribed  in  this  act. 

Notes  to  section  326. 

This  section  is  taken  from  section  3063  of  the  Code  of  Civil  Pro- 
cedure, relating  to  justices'  courts.  See  also  §  310,  as  to  powers  on 
appeal. 

See  cases  on  this  section,  Tuttle  v.  Dennis,  58  Hun,  39 ;  Southard  v. 
Becker,  15  Misc.  Rep.  438;  Merris  v.  Hurst,  71  Hun,  483;  McLaughlin 
v.  Harriot,  14  Misc.  Rep.  344;  Frink  v.  Steven,  88  Hun,  283. 

§  327.  Clerk  appellate  court  to  return  papers,  et  cetera. — 
Upon  the   rendering  of  judgment   of  the   appellate   court, 


4:2-2  Appeals.  §  327. 

affirming,  modifying  or  reversing  a  judgment  or  order  of  the 
municipal  court,  the  clerk  of  the  appellate  court,  shall  return 
to  the  district  of  the  municipal  court  from  which  the  appeal 
was  taken,  all  the  papers  on  tile  in  his  office  making  up  the 
judgment-roll  of  said  action  or  proceeding. 

Notes  to  section  327. 

This  section  is  new  and  is  similar  to  a  remittitur. 

WHAT  IS  APPEALABLE. 

See  also  notes  to  §  310. 

Adjournments,  illegal,  appearing  on  the  face  of  the  record.  Chcvra 
Brei,  etc.  v.  Chevra  Bikur,  etc.,  23  Misc.  Rep.  367,  51  N.  Y.  Supp.  2:5(5. 

Amendment. —  Refusal  to  allow  at  any  time  before,  or  during  the 
trial.     King  v.  Darmann,  26  Misc.  Rep.  133,  55  N.  Y.  Supp.  87G. 

Discontinuance. —  Refusal  to  allow.  Goldberg  v.  Victor,  2(5  Misc.  Rep. 
72S.  5t5  N.  Y.  Supp.   1044. 

Id.— At  close  of  testimony.  Exception  necessary.  Transcendent  L. 
Co.  v.  Stvrtz,  35  Misc.  Rep.  305,  71  N.  Y.  Supp.  947. 

Irregularity  in  issue  of  alias  summons.  Loeb  v.  Smith,  24  Misc. 
Rep.  200,  52  N.  Y.  Supp.  677. 

Jurisdiction. —  Judgment  void  for  irregularity  in  the  issue  of  alias 
summons.     Loeb  v.  Smith,  24  Misc.  Rep.  200,  52  N.  Y.  Supp.  677. 

Orders. —  Appeals  from,  are  allowed  by  sections  253  and  257.  See 
notes  to  §  310. 


WHEN  APPEAL  WILL  NOT  LIE  AND  QUESTIONS  NOT  REVIEW- 
ABLE. 

Amendments  on  appellant's  request.  Orser  v.  Grossman,  11  How.  Pr. 
250;   s.  c,  4  E.  D.  Smith,  443. 

Conflicting  evidence;  prejudice,  passion,  partiality. —  The  determina- 
tion upon  conflicting  evidence  is  not  the  subject  of  review  on  appeal 
unless  it  appears  there  was  influence  by  prejudice,  passion,  or  partial- 
ity.    Goodman  v.  Riccadonne,  13  Misc.   Rep.   (5(5. 

Defective  pleadings.—  Tift  v.  Tift,  4  Den.  175;  Neff  v.  Clute,  12  Barb. 
66;  Bell  v.  Davis,  8  Barb.  210;  Hall  v.  McKechnie,  22  Barb.  245; 
Young  v.  Rummell,  5  Hill,  60. 

Denial  of  motion;  leave  to  renew;  judgment  entered  meanwhile. — 
The  remedy  is  to  move  to  open  the  judgment  —  an  appeal  from  it  will 
not  lie.     Edelson  v.  Epstein,  27  Misc.  Rep.  543,  58  N.  Y.  Supp.  334. 

Discretion. —  Matters  resting  in  the  discretion  of  the  court  are  not 
reviewable,  unless  they  affect  a  substantial  right.     Mitchell  v.  Menlcle, 


Appeals.  423 

1  Hilt.  142;  Brown  v.  Jones,  3  Abb.  Pr.  80;  s.  c,  1  Hilt.  204;  Keller 
v.  Feldman,  49  N.  Y.  St.  Rep.  718;  Tooker  v.  Booth,  7  Misc.  Rep.  421; 
Marry  v.  (7o#m,  11  Daly,  180. 

As  to  what  is  proper  legal  discretion,  see  O'Connor  v.  Moschowitz, 
48  How.  451. 

Order  vacating  order  opening  default  for  noncompliance  with  condi- 
tions.—  Appeal  will  not  lie  from  the  second  order.  Schwartz  v. 
Schendel,  23  Misc.  47,  51  N.  Y.  Supp.  415. 

Id. —  Vacating  a  judgment  on  the  ground  that  there  had  been  no 
service  or  voluntary  appearance,  nor  from  an  order  vacating  the  first 
order  and  denying  the  original  motion.  Adolph  v.  Klein,  23  Misc.  Rep. 
700;  s.  c,  52  N.  Y.  Supp.  32. 

WHAT  OBJECTIONS  MAY  BE  RAISED  ON  THE  APPEAL. 

Assumption  of  fact  not  proven. —  Lee  v.  Schmidt,  1  Hilt.  537. 
injustice  was  done,  although  no  exception  was  taken.     Maier  v.  Homctn, 
4  Daly,   168. 

Jury  trial. —  Denial  of,  although  no  exception  was  taken.  Meech  v. 
Brown,  1  Hilt.  257;  s.  c,  4  Abb.  Pr.  19. 

Dismiss  complaint  at  close  of  testimony. —  In  considering  an  appeal 
the  court  is  not  concluded  by  the  absence  of  such  a  motion.  The  Bos- 
ton, etc.  v.  The  Metropolitan,  etc.,  14  Misc.  Rep.  571. 

Unanswerable. —  An  objection  which  the  opposite  party  could  not 
have  answered  by  further  evidence,  or  by  any  act  on  his  part.  Tift  v. 
Tift,  4  Den.  175;  Newcomb  v.  Clarke,  1  Den.  226;  Pepper  v.  Haight, 
20  Barb.  429. 

WHAT  OBJECTIONS  CANNOT  BE  RAISED  FOR  THE  FIRST  TIME 

ON  APPEAL. 

Jurisdiction  is  waived,  unless  raised  in  court  below.  See  Bang  v. 
McEvoij,  52  App.  Div.  501. 

Objections  or  proof  which  might  have  been  obviated  at  the  trial,  if 
objection  had  then  been  made.  Binsse  v.  Wood,  37  N.  Y.  532 ;  Thayer 
v.  Marsh,  75  N.  Y.  540;  Blair  v.  Flack,  141  N.  Y.  56;  Bliss  v.  Sickles, 
142  N.  Y.  648;  Appleton  v.  Welch,  20  Misc.  Rep.  343. 

Id.;  must  be  specific. —  The  court  does  not  favor  a  deceptive,  secret, 
or  unfair  mode  of  raising  an  objection;  and  therefore  such  objections 
as  could  have  been  fairly  answered  if  they  had  been  seasonably  made, 
will  be  disregarded,  if  not  specifically  taken  below.  Coon  v.  Syracuse 
d  Utica  R.  R.  Co.,  5  N.  Y.  492;  Dayharsh  v.  Enos,  5  N.  Y.  531:  Peck 
v.  Richmond,  2  E.  D.  Smith,  381;  Barnes  v.  Perrine,  12  N.  Y.  18; 
Fowler  v.   Clearwater,  35  Barb.   143. 

When  an  irregularity  is  objected  to,  or  when  improper  evidence  is 
offered,  the  party  objecting  must   fully,   clearly,   and   distinctly  state 


424  Appeals. 

the  grounds  of  objection.  A  general  objection  may  be  sufficient  in 
some  cases,  as,  for  instance,  where  the  objection  could  not  have  been 
obviated  had  it  been  specifically  pointed  out.  Merritt  v.  Seaman,  6 
N.  Y.  1G8.  Where  an  objection  is  general  and  the  evidence  is  proper, 
but  the  mode  of  proving  it  is  improper,  the  court  will  presume  that 
the  objection  is  not  made  to  the  manner,  but  the  matter,  and  the  ob- 
jection will  be  unavailing.     Belloics  v.  Sackett,   15  Barb.  90. 

Wrong  district. —  The  objection  that  the  defendant  did  not  reside 
within  the  judicial  district.  Weuthen  v.  Eyelis,  33  Misc.  Rep.  98.  67 
N.  Y.  Supp.  246,  8  N.  Y.  Annot.  Cas.  372;  Barker  v.  Archer,  4«>  App. 
Div.  80,  63  N.  Y.  Supp.  298;  Koekle  v.  Pangborn,  33  Misc.  Rep.  476, 
67  N.  Y.  Supp.  898. 

WHEN  JUDGMENT  WILL  BE  AFFIRMED. 

Account  or  bill  of  particulars,  refusal  to  furnish,  is  no  ground  for 
reversal.  See  Rosen  v.  Rosenthal,  22  Misc.  Rep.  143,  48  N.  Y.  Supp. 
790. 

Adjourn,  refusal  to,  no  ground  for  reversing  judgment.  Onderdonk 
v.  Ranlett,  3  Hilt.  323;  Irroy  v.  Nathan,  4  E.  D.  Smith,  68;  Decker  v. 
Russel,   26  How.   Pr.   528. 

Amendment  from  breach  of  contract  to  tort  is  no  ground  for  reversal. 
Doughty  v.  Crozicr,  9. Abb.  Pr.  411.  See  however  Andrews  v.  Bond,  1G 
Barb.  633. 

Id.,  refusal  to  allow,  can  only  be  when  no  injustice  would  result  from 
granting  the  application.  A  motion  made  on  the  trial  to  amend  an 
answer  so  as  to  add  a  new  defense  is  properly  refused.  Tattcrsall  v. 
Hass,  1  Hilt.  56;  Waldheim  v.  Sichel,  1  Hilt.  45. 

Appellant  not  appearing;  default. —  An  appeal  was  noticed  for  argu- 
ment, and  placed  on  the  calendar  by  the  appellant.  On  the  case  being 
called,  the  appellant  not  appearing,  the  judgment  was  affirmed  by  de- 
fault, on  motion  of  the  respondent,  and  without  any  proof  being  re- 
quired of  his  having  noticed  the  appeal  for  argument.  Held  regular. 
Townsend  v.  Keenan,  2  Hilt.  544.  See  also  Luft  v.  Graham,  44  How. 
Pr.   152. 

The  court  will  affirm  the  judgment,  if  the  appellant  does  not  appear 
to  argue  the  appeal.  Oeraghty  v.  M alone,  1  Code  Rep.  674;  Bellony  v. 
Alexander,  1  Code  Rep.  64;   Toivnsend  v.  Keenan,  2  Hilt.  545. 

If  respondent  fails  to  appear  the  appellant  may  either  argue  or  sub- 
mit his  case,  but  judgment  of  reversal  by  default  will  not  be  allowed. 
Rule  VI,  Supreme  Court  Rules  for  Appellate  Term.     See  p.  435. 

Bias,  corruption,  palpable  mistake,  partiality,  passion,  prejudice,  con- 
flicting, and  weight  of  evidence. —  A  judgment  rendered  upon  conflicting 
evidence  will  not  be  reversed,  though  the  number  of  witnesses,  but 
not  necessarily  the  weight  of  evidence,  preponderates  against  it,  in 
the  absence  of  apparent  mistake,  or  bias  prejudice,  passion,  or  corrup- 


Appeals.  425 

tion.  Manhattan  F.  A.  Co.  v.  Weber,  22  Misc.  Rep.  729,  50  N.  Y. 
Supp.  42;  Herman  v.  Goldsand,  22  Misc.  Rep.  735,  49  N.  Y.  Supp.  1098; 
Morgan  v.  Enright,  22  Misc.  Rep.  737,  49  N.  Y.  Supp.  HOG. 

Charging  jury. —  Omission  or  refusal  of  the  justice  to  do  so  is  not 
error.     Pettit  v.  Ide,  12  Abb.  Pr.  44. 

Contract  and  tort. —  A  judgment  will  not  be  reversed  though  on  the 
ground  that  a  complaint  which  was  for  a  conversion,  relied  on  an  im- 
plied contract,  the  evidence  could  only  support  an  action  for  tort,  where 
it  appears  that  the  defendant  was  not  misled.  Doughty  v.  Crozier,  9 
Abb.  Pr.  411. 

Credibility  and  veracity  of  witnesses. —  The  judgment  will  not  be 
disturbed,  when  the  credibility  of  the  witnesses  respectively  is  the 
determining  factor  (Kenke  v.  Standard  Oil  Co.,  25  Misc.  Rep.  761,  54 
N.  Y.  Supp.  124)  ;  or  upon  an  estimate  of  the  relative  veracity  of  the 
witnesses.     Fajen  v.  German  D.  F.  Church,  27  Misc.  Rep.  797. 

Cross-appeal. —  The  respondent  must  bring  cross-appeal  to  take  ad- 
vantage of  error.  Where  this  is  not  done,  and  the  return  clearly  shows 
that  an  error  was  committed,  it  will  furnish  no  ground  for  reversing 
the  judgment.  Bobbins  v.  Codman,  4  E.  D.  Smith,  316;  Glassner  v. 
Wheaton,  2  E.  D.  Smith,  352;  Lee  v.  Schmidt.  13  Abb.  Pr.  183;  s.  c, 
1  Hilt.  537 ;  Berrian  v.  Elmstead,  4  E.  D.  Smith,  279. 

Evidence  on  the  appeal  cannot  be  received  for  the  purpose  of  revers- 
ing a  judgment,  though  it  may  be  received  to  sustain  one.  Flanagan 
v.  Callanan,  22  Misc.  Rep.  139,  48  N.  Y.  Supp.  708. 

Id.;  conflicting;  injustice  done. —  A  judgment  rendered  upon  conflict- 
ing evidence  will  not  be  reversed  unless  it  is  clear  that  injustice  has 
been  done.  Paterson  Gas  Co.  v.  Lichtenstein,  9  Misc.  Rep.  126;  Mit- 
chell Vance  Co.  v.  Dalker,  46  N.  Y.  St.  Rep.  189;  s.  c,  19  N".  Y.  Supp. 
378;  Goodman  v.  Biccadonna,  13  Misc.  Rep.  66.  See  also  Conroy  v. 
Allen,  23  Misc.  Rep.  125,  56  N.  Y.  Supp.  610;  Bannon  v.  Levi,  23  Misc. 
Rep.  130,  50  N.  Y.  Supp.  659;  Burkhard  v.  Hagemeyer,  etc.,  23 
Misc.  Rep.  167,  56  N.  Y.  Supp.  667;  Kingston  v.  Berry,  26  Misc.  Rep. 
803,  58  N.  Y.  Supp.  331 ;  Jackson  v.  Xeiv  Amsterdam  G.  Co.,  27  Misc. 
Rep.  777,  57  N.  Y.  Supp.  753;  Baertz  v.  Kruger,  58  N.  Y.  Supp.  1109; 
Karpcr  v.  Engelhart,  57  N.  Y.  Supp.  245;  Furber  v.  Marcus,  41  App. 
Div.   425,  58  N.  Y.  Supp.  867. 

Judgment  of  this  court  rendered  for  defendant,  resisting  a  balance 
claimed  to  be  due  for  painting  a  building,  on  the  ground  the  contract 
therefor  was  not  duly  performed, —  affirmed,  it  not  appearing  that 
injustice  resulted.     Hall  v.  Jones,  58  N.  Y.  Supp.  1063. 

Id.,  illegal,  is  not  error  if  there  is  valid  evidence  to  sustain  the  judg- 
ment. Buck  v.  Waterbury,  13  Barb.  116;  Shorter  v.  People,  2  N.  Y. 
193;   Harper  v.  Leal,  10  How.  Pr.  278. 

The  admission  of  incompetent  or  illegal  evidence  will  not  be  cured 
by  a  subsequent   direction  by  the  justice  to  the  jury  to   disregard  it. 


426  Appeals. 

Penfield  v.  Carpenter,   13  Johns.  350;    Iruine  v.   Cook,   13  Johns.   239; 
r»ttfe  v.  ffwnr,  2  Cow.  436. 

A  ruling  in  favor  of  admitting  illegal  evidence  will  do  no  harm,  if  no 
evidence  is  given  under  the  decision.  Houiand  v.  Willetts,  9  N.  Y. 
170;    Vallance  v.  jRnp,  3   Barb.  548. 

Id.,  immaterial. —  A  judgment  will  not  be  reversed  because  of  the 
admission  of  immaterial  evidence,  when  it  can  be  seen  that  no  harm 
resulted  from  its  admission  {Moore  v.  Somerindike,  1  Hilt.  199; 
Spencer  v.  Saratoga,  etc-.,  R.  R.  Co.,  12  Barb.  282;  Best  v.  Smith,  5 
Barb.  283;  B«c/c  v.  Waterbury,  13  Barb.  116;  Andrcir*  v.  Harrington, 
19  Barb.  343;  WeZZs  v.  Cowe,  55  Barb.  585,  589)  ;  as  where  the  fact 
intended  to  be  proved  thereby  is  already  sufficiently  established  by 
other  evidence.  Crane  v.  Hardman,  4  E.  D.  Smith,  448;  Buck  v.  Water- 
bury,  13  Barb.  116. 

Id.;  sufficiency. —  The  finding  of  a  justice,  based  on  sufficient  evidence, 
will  not  be  disturbed  on  appeal.  'Seilson  v.  Ray,  44  N.  Y.  St.  Rep. 
125;  s.  c,  17  N.  Y.  Supp.  500,  citing  Henry  v.  Bctts,  1  Hilt.  150; 
Shaver  v.  Gillespie,  4G  N.  Y.  St.  Rep.  771;  s.  c,  19  N.  Y.  Supp.  237, 
citing  Scholl  v.  Albany  Steel  Co.,  101  N.  Y.  602. 

The  findings  of  the  trial  judge  where  there  is  sufficient  evidence  to 
sustain  them  will  be  'sustained,  although  the  Appellate  Term  might 
have  come  to  a  different  conclusion.  Lynch  v.  Kluber,  20  Misc.  Rep. 
601;  Lowenthal  v.  Cop  land,  18  Misc.  Rep.  6;  Foster  v.  Meeks,  18  Misc. 
Rep.  463. 

Facts. —  Judgment  will  not  be  reversed  on  the  facts  unless  injustice 
has  been  done.  Gwillin  v.  Smith,  26  Misc.  Rep.  784,  56  N.  Y.  Supp. 
226;  Schmitz  v.  Stahl,  26  Misc.  Rep.  788,  56  N.  Y,  Supp.  195;  Lewis 
v.  Hosey,  26  Misc.  Rep.  789,  56  N.  Y.  Supp.  200;  Smith  v.  Davis,  26 
Misc.  Rep.  798,  56  N.  Y.  Supp.  183;  Lewis  v.  Heydenreich,  26  Misc. 
Rep.  833,  56  N.  Y.  Supp.  1014;   King  v.  Krain,  60  N.  Y.  Supp.  264. 

Id.;  conflicting  evidence. —  The  Appellate  Term  will  not  review  the 
judgment  on  the  facts,  if  the  evidence,  though  conflicting,  is  sufficient 
to  support  it.  Cassady  v.  Horton,  32  Misc.  Rep.  148,  65  N.  Y.  Supp. 
626. 

Error  of  fact. —  The  Appellate  Term  will  not  order  a  new  trial,  under 
Code  of  Civil  Procedure,  section  3057,  for  an  error  or  mistake  of  the  jus- 
tice in  finding  the  facts,  the  term  "  error  of  fact  "  meaning  facts  affect- 
ing the  validity  or  regularity  of  the  proceedings  and  not  appearing  in 
the  record,  such  as  death,  coverture,  or  infancy  of  one  of  the  parties. 
Tarder  v.    Bezozi,  34  Misc.  Rep.  551,  69  N.  Y.  Supp.   1047. 

Failure  to  move  to  dismiss  the  complaint. —  Where  there  is  no  motion 
to  dismiss  at  the  close  of  the  entire  case,  an  exception  to  a  denial  of  ap 
motion  for  nonsuit  at  the  close  of  plaintiff's  case  is  not  available  on 
appeal.     Sullivan  v.  Brooks  et  al.,  10  Misc.  Rep.  368;  Kafka  v.  Leven- 
sohn,  18  Misc.  Rep.  202;  Flanders  v.  Hammond,  148  N.  Y.  130. 


Appeals.  427 

Former  trial. —  On  the  trial  it  was  proved  that  there  had  been  a  for- 
mer trial  between  the  same  parties  for  the  same  cause  of  action.  Held, 
that  this  fact,  without  proving  such  trial  terminated,  will  not  warrant 
the  reversal  of  the  judgment.     Merrill  v.  Whitehead,  4  E.  D.  Smith,  239. 

Leading  questions. —  The  judgment  will  not  be  reversed  on  account 
of  having  allowed  leading  questions  to  witness,  unless  it  is  plain  there 
has  been  an  abuse  of  the  discretion.     Seymour  v.  Bradfield,  35  Barb.  49. 

Neglect  of  the  justice  to  deliberate  upon  the  whole  testimony. — 
Where  there  is  a  conflict  of  evidence  the  finding  of  the  justice  will  not 
be  disturbed,  unless  the  evidence  be  of  such  convincing  character  as  to 
lead  to  the  conclusion  that  the  justice  has  neglected  through  mistake 
to  deliberate  upon  the  whole  testimony.  May  v.  Meierdieck,  42  N.  Y. 
St.  Rep.  469;  Weiss  v.  Strauss,  39  N.  Y.  St.  Rep.  78;  s.  c,  14  N.  Y. 
Supp.  776;   Dempsey  v.  Paige,  4  E.  D.  Smith,  219. 

Proof,  supplying. —  If  a  nonsuit  is  moved  tor  defect  in  the  evidence, 
the  introduction  of  evidence  which  completes  the  proof  by  either  party 
will  cure  the  error  of  refusing  to  grant  the  motion  at  the  time  when  it 
was  made.  Kent  v.  Harcourt,  33  Barb.  491;  Breidert  v.  Vincent,  1  E.  D. 
Smith,  542;  Barrick  v.  Austin,  21  Barb.  241;  Lambert  v.  Seely,  2  Hilt. 
429;  s.  c,  17  How.  Pr.  432. 

Reasons  of  court  below. —  The  appellate  court,  if  impressed  with  the 
correctness  of  an  order  setting  aside  a  verdict,  is  not  confined,  for  the 
purpose  of  affirmance,  to  the  reasons  given  by  the  justice  at  the  trial, 
but  must  approve  the  decision  if  correct  on  any  ground.  O'Gorman  v. 
Teets,  20  Misc.  Rep.  359. 

Variance  between  pleadings  and  proof. —  Where  no  injustice  has  been 
done,  there  is  no  reason  for  reversing  the  judgment.  Briggs  v.  Evans, 
1  E.  D.  Smith,  192.  See  also  Rogers  v.  Verona,  1  Bosw.  417.  Nor  will 
a  judgment  be  reversed  for  errors  in  the  complaint,  although  they  are 
such  as  would  have  been  good  ground  of  objection  if  taken  at  the  trial 
Avhen  such  defects  were  supplied  by  the  evidence,  and  no  harm  had  been 
occasioned  by  them.     Mayor  of  New  York  v.   Green,  1  Hilt.  393. 

GROUNDS  FOR  REVERSAL. 

Amendment,  refusal  to  allow.  King  v.  Donovan,  26  Misc.  Rep.  133, 
55  N.  Y.  Supp.  876. 

Contract;  nonperformance;  damages. —  Where  plaintiff  seeks  to  re- 
cover on  a  contract  on  the  theory  of  performance,  which  he  fails  to 
prove,  and  judgment  is  rendered  in  his  favor  for  the  whole  claim,  against 
objection,  and  the  damage  sustained  by  plaintiff  by  defendant's  refusal 
to  carry  out  the  contract  is  not  shown,  judgment  must  be  reversed. 
Nicoll  v.  Lloyd,  26  Misc.  Rep.  799,  56  N.  Y.  Supp.   178. 

Contradictory  statement  in  return. —  Lees  v.  Pitney,  27  N.  Y.  Supp. 
972. 


428  Appeals. 

Counsel  reading  to  the  jury. —  When  counsel  are  permitted,  under 
objection  and  exception,  while  summing  up,  to  read  to  the  jury  an  ab- 
stract from  a  pamphlet  or  newspaper,  or  to  exhibit  a  cartoon,  not  in 
evidence,  it  is  good  ground  for  reversal.  Koelges  v.  (Jitardian  Life  Ins. 
Co.,  57  N.  Y.  G38;  Williams  v.  Brooklyn  Elevated  Co.,  126  N.  Y.  96; 
McKeever  v.  Weyen,  11  Week.  Dig.  2.58;  People  v.  Fielding,  158  N.  Y. 
547. 

Defendant  not  served  with  summons;  judgment  by  default. —  If  the 
Appellate  Term  is  not  satisfied  on  the  merits  that  the  defendant  has 
been  served  with  the  summons,  it  will  reverse  the  judgment.  Empire, 
etc.  v.  Young,  27  Misc.  Rep.  226,  57  N.  Y.  Supp.  753. 

Discontinuance  of  action,  refusal  to  allow.  Goldberg  v.  Victor,  26 
Misc.  Rep.  728,  56  N.  Y.  Supp.  1044. 

Effect  of  reversal. —  Where  a  judgment  is  reversed,  without  an  award 
of  judgment  final  for  the  defendant  upon  the  merits,  such  reversal  is 
not  conclusive  of  the  rights  of  the  parties.  Ellert  v.  Kelly,  10  How.  Pr. 
392;  s.  c,  4  E.  D.  Smith.  12.  Where  a  judgment  of  nonsuit  is  rendered, 
which  is  reversed  on  appeal,  the  plaintiff  must  commence  de  novo. 
Anonymous,  9  Wend.  503.  Where  a  judgment  is  subsequently  reversed, 
upon  technical  grounds  in  no  way  involving  the  merits,  this  will  not  be 
a  bar  to  a  subsequent  action  for  the  same  cause.  Onderdong  v.  Ran- 
lett,  3  Hilt.  323. 

On  the  reversal  of  an  order  setting  aside  defendant's  default,  all  the 
proceedings  taken  thereunder  fall  with  it,  and  judgment  for  defendant 
rendered  pending  the  appeal  from  the  order  must  be  reversed.  Wein- 
berg v.  Frank,  25  Misc.  Rep.  788,  56  N.  Y.  Supp.  920. 

Evidence. —  The  court  may  review  the  evidence  and  reverse  upon  the 
facts.  Phillips  v.  Mumsey,  22  N.  Y.  St.  Rep.  226;  Macniffe  v.  Luding- 
ton,  13  Abb.  N.  C.  407. 

Id.,  illegal. —  If  the  evidence  is  illegal,  affects  a  material  issue  in  the 
case,  objection  is  taken,  it  is  admitted,  and  judgment  rendered  against 
the  party,  it  is  good  ground  for  reversing  the  judgment.  Williams  v. 
Fitch,  18  N.  Y.  546;  Erben  v.  Lorillard,  19  N.  Y.  299;  Worrall  v.  Par- 
malee,  1  N.  Y.  519;  Wilmot  v.  Richardson,  6  Duer,  329;  Murray  v. 
Smith,  1  Duer,  413;  Tuttle  v.  Hunt,  2  Cow.  436;  Whiting  v.  Otis,  1 
Bosw.  420,  424;  Dresser  v.  Ainsworth,  9  Barb.  619;  Ward  v.  Washington 
Ins.  Co.,  6  Bosw.  230;  Penfield  v.  Carpenter,  13  Johns.  350;  Weber  v. 
Kingsland,  8  Bosw.  415,  443;  Hahn  v.  Van  Doren,  1  E.  D.  Smith,  411; 
Main  v.  Eagle,  1  E.  D.  Smith,  619,  620;  Belden  v.  Nicolay,  4  E.  D. 
Smith,  14,  17. 

Id.,  improperly  received,  which  may  have  influenced  the  judgment, 
and  which  was  taken  into  consideration  in  finding  the  facts,  cannot  be 
disregarded,  although  there  appears  to  be  evidence  in  the  cause  which 
would  have  been  sufficient  to  sustain  the  same  finding,  had  the  illegal 
testimony  been  rejected.     Belden  v.  Nicolay,  4  E.  D.  Smith,  14;  Hahn 


Appeals.  429 

V.  Van  Doren,  1  E.  D.  Smith,  411;  Main  v.  Eagle,  1  E.  D.  Smith,  G10. 
And  see  Harper  v.  Leal,  10  How.  Pr.  276 ;  Martin  v.  Garrett,  4  E.  D. 
Smith,  346. 

Id.,  rejected. —  Though  the  court  may  be  of  opinion  that  evidence, 
which  has  been  improperly  rejected,  would  not  have  changed  the  verdict 
of  the  jury,  yet,  if  it  might  have  influenced  their  minds  in  considering 
the  facts,  and  was  competent,  the  appellate  court  is  not  at  liberty  to 
overlook  the  erroneous  rejection.  McAllister  v.  Sexton,  4  E.  D.  Smith, 
41. 

Where  an  appeal  is  based  upon  the  ground  of  an  improper  rejection 
of  competent  testimony,  the  case  must  show  clearly  that  there  was  an 
exception  taken  to  sucn  rejection  or  that  the  appellant  was  injured 
thereby.     Carey  v.  Carey,  4  Daly,  270. 

The  exclusion  of  testimony  offered  to  prove  an  affirmative  defense 
on  the  ground  defendant  had  failed  to  serve  on  plaintiff  a  bill  of  par- 
ticulars not  demanded  upon  a  joinder  of  issue,  nor  until  defendant 
sought  to  put  in  his  evidence  at  the  trial,  is  sufficient  cause  for  re- 
versal. Be  Gregori  v.  Saitta,  50  App.  Div.  476,  64  N.  Y.  Supp.  10,  7 
N.  Y.  Annot.   Cas.  369. 

Id.,  judgment  against. —  Positive  testimony  that  a  bill  given  in  pay- 
ment of  the  cause  of  action  was  counterfeit,  met  only  by  the  testimony 
of  the  defendant  that  he  has  no  recollection  of  paying  the  bill  in  ques- 
tion, presents  a  case  where  the  justice  decides  against  the  evidence  if 
he  gives  judgment  for  the  defendant.     Baker  v.  Bonesteel,  2  Hilt.  307. 

Where  the  testimony  establishing  a  case  is  direct,  unequivocal,  and 
consistent,  the  witnesses  standing  unimpeached  and  uncontradicted,  jus- 
tice or  jury  cannot  unreasonably  discredit  them,  and  the  judgment  will 
be  set  aside  as  against  evidence.  Jacks  v.  Darrin,  3  E.  jJ.  Smith,  558 ; 
Dolsen  v.  Arnold,  10  How.  Pr.  528,  532. 

Id.,  preponderance  of. —  Reversal  on  the  facts  may  be  had  only  when 
the  evidence  presents  such  a  preponderance  in  favor  of  the  appellant  that 
a  contrary  finding  would  be  legal  error.  Marvin  Safe  Co.  v.  Foss,  44 
N.  Y.  St.  Rep.  130;  s.  c,  17  N.  Y.  Supp.  517,  citing  Phillips  v.  Munsey, 
22  N".  Y.  St.  Rep.  226;  Macniffe  v.  Ludington,  13  Abb.  N.  C.  407. 

Id.,  weight  of. —  In  determining  the  weight  it  is  proper  to  consider 
the  quality  of  the  evidence,  the  interest  of  the  witnesses  in  the  issue  of 
the  trial,  and  the  compatibility  and  consistency  of  their  several  state- 
ments with  the  truth  as  it  appears  from  attendant  circumstances.  Schu- 
macher v.  Waring,  7  Misc.  Rep.  161;  Hirshkind  v.  Private  C,  B.  &  C. 
Assn.,  12  Misc.  Rep.  454. 

In  considering  the  weight  of  evidence  the  court  will  have  due  regard 
for  the  kind  and  quality  of  such  evidence,  the  degree  of  credibility  to 
which  the  testimony  of  witnesses  is  entitled,  and  the  apparent  probabil- 
ity or  improbability  of  its  truthfulness.  Brcwn  v.  Sullivan,  1  Misc. 
Rep.  161  :  Macniffe  v.  Ludington,  13  Abb.  N.  C.  407;  Foxain  v.  Brown, 
3  N.  Y.  St.  Rep.  608. 


430  Appeals. 

In  an  action  for  money  alleged  to  have  been  loaned  to  the  defendant. 
to  buy  a  suit  of  clothes,  plaintiff  testified  to  the  fact  alleged  and  was 
corroborated  by  his  wife  and  another  witness  who  testified  to  a  promise 
by  defendant  to  repay  the  loan.  The  defendant  having  denied  the  loan 
and  without  objection  introduced  evidence  that  about  the  time  of  the 
alleged  loan  he  bought  a  suit  of  clothes  and  his  uncle  paid  for  it  —  Held, 
that  the  judgment  for  defendant  would  not  be  reversed  as  against  the 
weight  of  evidence.  Siefke  v.  Siefke,  5  Misc.  Rep.  40G,  citing  Stiffens. 
v.  Steffens,  10  Daly,  363. 

Judgment  for  plaintiff  resting  on  his  own  testimony  as  to  the  amount 
to  be  paid  to  him  for  placing  a  loan, —  set  aside,  on  the  testimony  of 
defendant  corroborated.     Kearney  v.  Alexander,  58  N.  Y.  Supp.  1075. 

Exception. —  On  appeal  the  Appellate  Division  may  reverse  without 
an  exception,  but  will  not  do  so  unless  the  error  goes  to  the  substantial 
justice  of  the  case.  Philips  v.  Hine,  61  App.  Div.  428,  70  N.  Y.  Supp. 
593. 

Furtherance  of  justice. —  Although  the  appellate  court  will  not  re- 
verse a  judgment  where  there  is  conflicting  evidence,  yet  it  will  review 
the  evidence,  and  reverse  the  judgment,  although  the  evidence  as  to  the. 
facts  was  conflicting,  when  the  court  is  satisfied  that  justice  has  not 
been  done.  Curley  v.  Tomlinson,  5  Daly,  283.  See  also  Bccbc  v.  Mead, 
33  N.  Y.  587;  Peterson  v.  Rawson,  34  N.  Y.  370;  Smith  v.  Etna  Life 
Ins.  Co.,  49  N.  Y.  211;  Macniffe  v.  Luddington,  67  How.  13;  Patterson 
v.  Lichtenstein,  9  Misc.  Rep.  66;  Goodman  v.  Riccadonna,  13  Misc.  Rep. 
66;  Pelleteau  v.  The  U.  S.  L.  Co.,  13  Misc.  Rep.  237. 

On  appeal,  new  trial  ordered  under  Curley  v.  Tomlinson.  5  Daly,  283, 
on  the  ground  that  the  ends  of  justice  required  it.  Jourdan  v.  Healy, 
46  N.  Y.  St.  Rep.  198;  s.  c,  22  Civ.  Proc.  Rep.  157,  19  N.  Y.  Supp.  240. 
See  also  Phillips  v.  Munsey,  22  N.  Y.  St.  Rep.  226;  Macniffe  v.  Lud- 
dington, 12  Abb.  N.  C.  407. 

Judgment  after  statutory  time.—  The  failure  of  a  justice  to  render 
judgment  within  the  time  (now  fourteen  days)  after  the  cause  is  sub- 
mitted to  him  renders  the  judgment  a  nullity.  Berrian  v.  Olmstead, 
4  E.  D.  Smith,  279;  Watson  v.  Davis,  19  Wend.  371;  Wiseman  v, 
Panama  R.  R.  Co.,  1  Hilt.  300. 

If  the  last  day  falls  on  Sunday,  judgment  must  be  rendered  on  the 
day  preceding;  if  it  is  not  so  done,  the  judgment  will  be  erroneous. 
Bissell  v.  Bissell,  11  Barb.  96;  Ex  parte  Dodge,  7  Cow.  147,  1  Wait's 
L.  &  Pr.  56,  §  115,  2  Wait's  L.  &  Pr.  694. 

Time  for  decision. —  A  judgment  rendered  after  the  time  limited  by 
law,  ©n  the  consent  of  the  parties.  Lambert  v.  Solomon,  28  App.  Div. 
562,  59  N.  Y.  Supp.  676. 

If  it  appears  from  the  record  that  the  Judgment  was  rendered  more 
than  eight  (now  fourteen)  days  after  it  was  submitted,  the  return 
stating  that  it  was  rendered  within  eight   (now  fourteen)    days    must 


Appeals.  431 

be  regarded  as  erroneous,  and  the  judgment  reversed  as  without  juris- 
diction.    Cohen  v.  Weill,  32  Misc.  Rep.  198,  G5  N.  Y.  Supp.  695. 

Jury  trial. —  Where  the  record  shows  that  the  defendant  demanded 
a  jury  trial  at  the  time  of  joining  issue,  a  judgment  rendered  by  the 
justice  alone  must  be  reversed,  as  the  justice  has  no  power  to  deprive 
the  defendant  of  his  statutory  right  to  a  jury  trial.  Itubenstein  v. 
miberfeld,  24  Misc.  Rep.  201,  52  N.  Y.  Supp.  703. 

Negligence. —  Complaint  dismissed,  on  the  sole  ground  that  the  de- 
fendant was  not  guilty  of  negligence;  the  court  will  reverse  the  judg- 
ment, if  erroneous  on  this  point,  and  will  not  pass  upon  the  question 
which  was  not  passed  on  below,  whether  plaintiff  was  not  also  guilty 
of  contributory  negligence.     Kinniell  v.  Burfeind,  2  Daly,  155. 

Misstatements. —  On  the  day  to  which  the  action  was  adjourned  the 
justice  was  engaged  in  the  trial  of  a  cause.  Upon  the  statement  that 
the  defendant  did  not  intend  to  appear,  he  suspended  trial,  and  took 
testimony  and  rendered  judgment  in  the  adjourned  case.  Shortly 
thereafter  the  defendant  appeared  for  the  purpose  of  trying  the  cause. 
Held,  that  the  judgment  should  be  reversed,  in  consequence  of  mis- 
statements to  the  justice  by  the  plaintiff.  Beach  v.  McCann,  1  Hilt. 
256;  s.  c,  4  Abb.  Pr.  18.     See  also  Armstrong  v.  Craig,  18  Barb.  387. 

Person  not  an  attorney  trying  case. —  Where  a  judge  of  a  District 
Court  knowingly  permits  a  person  who  is  not  an  attorney  and  eoun- 
selor-at-law  to  conduct  a  cause  before  him  to  the  end,  he  is  guilty  of 
a  misdemeanor  and  the  judgment  will  be  reversed.  Neivburger  v. 
Campbell,  58  How.  313,  9  Daly,  102. 

Proofs. —  The  judgment  must  be  sustained  by  the  proofs,  whether 
defendant  appears  or  not.  Alburtis  v.  McCready,  2  E.  D.  Smith,  39 ; 
Babcock  v.  Raymond,  2  Hilt.  62;  Hoivard  v.  Brown,  2  Hilt.  247.  The 
amount  of  damages  on  breach  of  contract  must  be  sustained  by  com- 
petent evidence  in  the  return,  not  upon  a  mere  estimate.  Ely  v. 
O'Leary,  2  Hilt.  355. 

A  judgment  must  be  supported  by  proof,  and  cannot  rest  upon  quali- 
fied admissions  made  by  defendant's  counsel  and  upon  stipulation  made 
between  the  attorneys,  whose  conditions  were  not  fully  performed. 
Judgment  reversed.  Cooper  v.  Kanter,  24  Misc.  Rep.  203;  s.  c,  52 
N.  Y.  Supp.  625. 

The  action  was  dismissed  on  the  ground  that  the  copy  summons 
served  did  not  contain  the  date  of  the  return,  but  the  record  not  show- 
ing that  the  paper  purporting  to  be  a  copy  was  served  at  all,  and  it. 
appearing  from  the  return  and  affidavit  of  the  marshal,  and  the  affi- 
davit of  plaintiff's  attorney  that  a  copy  of  the  summons  was  person- 
ally served,  which  was  not  traversed, —  Held,  that  the  judgment  should 
be  reversed.     Caldwell  v.  De  Korven,  66  N.  Y.  Supp.  309. 

Statute  of  limitations. —  The  defense  of  the  statute  of  limitations 
can  only  be  waived  by  an  express  consent  to  waive  it;  and  although  not 


432  Appeals. 

referred  to  on  the  tr,ial.  nor  in  the  summing  up,  and  it  escapes  the 
notice  of  the  justice  until  after  he  had  rendered  judgment,  yet,  on 
appeal,  if  it  appear  that  the  defense  was  sustained  by  the  evidence,  the 
judgment  will  be  reversed.     Pen  field  v.  Jacobs,  21  Barb.  335. 

REARGUMENT. 

See  Rule  IV  of  the  Supreme  Court  for  the  Appellate  Term,  to  be 
found  on  p.  434,  as  to  what  must  be  shown  on  a  motion  for  a  re- 
argument,  and  how  it  is  heard.  See  Mount  v.  Mitchell,  32  N.  Y.  702; 
Curley  v.  Tomlinson,  5  Daly,  283. 

Reargument  may  be  had,  although  judgment  of  affirmance  had  been 
entered  upon  the  decision  on  the  previous  hearing,  if  the  return  has 
not  been  remitted  to  the  court  below.  St.  Michael's  Prot.  Esp.  Ch. 
v.  Behrens,  13  Daly,  548. 

An  affidavit  which  merely  shows  that,  on  the  first  hearing,  the 
counsel  for  the  appellant  was  not  duly  prepared  to  argue  the  cause, 
and  therefore  entertains  the  belief  that  the  court  did  not  fully  under- 
stand the  questions  involved  in  the  case  is  insufficient.  Drucker  v. 
Patterson,  2  Hilt.  135.  A  rehearing  will  not  be  granted  where  the 
court  is  satisfied  that  a  hearing  would  lead  to  the  same  result.  Teag 
v.  Chrystie,  2  Abb.  Pr.  259.  See  also  Heald  v.  MacGovem,  25  N.  Y. 
St.  Rep.  579;  E.  T.  Co.  v.  ~E.  B.  Co.,  34  N.  Y.  St.  Rep.  315;  Poole  V. 
Harris,  28  1ST.  Y.  St.  Rep.  170;  People  ex  rel.  Ward  v.  Purroy,  45  N.  Y. 
St.  Rep.  49 ;  Norlinger  v.  Levine,  45  N.  Y.  St.  Rep.  52 ;  Compton  v. 
Heissenbuttel,  45  N.  Y.  St.  Rep.  102. 

LEAVE  TO  APPEAL  TO  THE  APPELLATE   DIVISION  OF   THE 
SUPREME  COURT. 

An  application  to  appeal  to  the  Appellate  Division  is  provided  for 
and  regulated  by  Rule  VII  of  the  Supreme  Court  for  the  Appellate 
Term.     (To  be  found  on  p.  435.) 

When  application  should  be  made. —  An  appeal  snould  be  allowed  by 
order  duly  entered,  before  the  end  of  the  next  term,  after  which  the 
judgment  sought  to  be  appealed  from  was  entered.  It  is  sufficient  if 
the  application  of  the  party  desiring  the  appeal  is  made  and  heard 
during  that  term:  and  though  the  court  do  not  decide  upon  the  ap- 
plication till  a  subsequent  term,  they  may  then  order  the  application 
to  be  allowed,  and  the  order  entered  as  of  the  proper  term.  Clapp 
v.  Graves,  9  Abb.  Pr.  21;  Smith  v.  White,  23  X.  Y.  100. 

What  must  be  shown. —  An  application  for  leave  to  appeal  must 
state  the  question  of  law  it  desired  to  have  reviewed,  and  that  question 
must  be  one  not  only  of  importance  but  which  has  never  hcen  adjudi- 
cated by  the  Court  of  Appeals.     White  v.  Balta,  7  Misc.  Rep.  GG2. 


Appeals.  433 

The  grounds  for  such  an  application  must  show  either  that  the  con- 
struction of  a  public  statute  is  involved;  that  questions  of  law  are  of 
public  importance,  or  affect  large  interests;  that  the  principles  involved 
are  of  importance  to  others,  or  that  a  number  of  cases  depend  upon  the 
decision  of  the  case  at  bar.    Spofford  v.  Rowan,  6  N.  Y.  St.  Rep.  273. 

Where  the  decision  upon  a  question  presented  is  in  direct  conflict 
with  a  decision  of  the  appellate  court,  a  proper  case  is  shown  for 
granting  leave  to  appeal.     Clapp  v.  Graves,  2  Hilt.  243. 

Leave  will  be  granted  when  questions  arise  that  should  be  determined 
by  the  court  of  last  resort,  such  as  to  determine  the  situs  of  the  plain- 
tiff's claim,  the  power  of  the  Legislature  of  another  State  to  alter  the 
right  of  a  resident  of  this  State,  and  whether  a  resident  of  this  State 
should  be  permitted  to  reach  property  exempt  by  the  laws  of  this  State 
from  execution  by  suing  a  resident  of  this  State  in  th»  courts  of  another 
State.     Dealing  v.  N.  Y.,  N.  H.  &  E.  R.  R.  Co.,  8  N.  Y.  St.  Rep.  386. 

Leave  to  appeal  will  not  be  granted  where  the  question  decided  re- 
lates only  to  practice,  and  a  case  involving  the  same  question  has  been 
previously  permitted  to  be  taken  to  the  appellate  court  (Palmer  v. 
Moeler,  2  Hilt.  421),  where  the  testimony  objected  to  on  the  trial  could 
not  have  prejudiced  the  party  excepting.  Lee  v.  Price,  8  N.  Y.  St.  Rep. 
258. 

Where  the  court  was  of  opinion  that  the  claim  of  the  plaintiff  (which 
had  been  rejected)  was  of  a  character  scarcely  escaping  what  is  denomi- 
nated as  "  lobby  services  " —  Held  to  be  a  good  ground  for  refusing  the 
plaintiff  leave  to  appeal.  Where  the  determination  of  a  suit  depends 
upon  the  construction  of  a  written  instrument,  leave  to  appeal  will  not 
he  granted  where  there  is  no  dissent  among  the  judges,  and  where  there 
is  no  question  of  general  interest  or  public  importance  involved.  Annan 
v.  Ritchie,  6  Daly,  331.  Where  there  is  a  diversity  of  opinion  and  prac- 
tice upon  certain  points  raised  upon  the  appeal,  if  the  decision  of  those 
points  was  not  necessary  to  its  determination  (although  passed  upon 
by  the  court),  and  the  decision  was  placed  upon  a  ground  that  had 
heen  passed  upon  by  the  Court  of  Appeals  in  a  reported  and  well-known 
case  (Josuez  v.  Murphy,  6  Daly,  404)  ;  where  the  case  is  a  peculiar 
one,  and  not  likely  to  be  of  frequent  occurrence.  Constant  v.  Barrett, 
14  Misc.  Rep.  570. 

LEAVE  TO  APPEAL  TO  THE  COURT  OF  APPEALS. 

This  is  regulated  by  section  191,  Code  of  Civil  Procedure. 

In  action  removed  and  appeal  therein,  leave  to  go  to  the  Court  of 
Appeals  was  still  required  to  be  obtained.  Smith  v.  White,  29  N.  Y. 
572;   Salter  v.  Parkhurst,  2  Daly,  240. 

28 


434        Rules  for  Hearing  Appeals. 

RULES    FOR    THE    HEARING    OF    APPEALS. 
By  authority  of  Laws  of   1895,  chap.  553,   §   15,  the  justices  of  the 
Appellate  Division  have  made  the  rules  and  regulations  for  the  hearing 
of  appeals  from  this  court  as  follows: 

First  Judicial  Department  in  the  Boroughs  of  Manhattan  and 

The  Bronx. 

Rule  I.  There  shall  be  a  term  of  the  Supreme  Court  for  the  hearing 
of  appeals  from  the  Municipal  Court  of  the  city  of  New  York,  in  the 
boroughs  of  Manhattan  and  The  Bronx,  which  shall  commence  on  the 
first  Monday  of  October,  December,  February,  April,  and  June  in  each 
year,  at  half-past  ten  A.  M.,  and  shall  continue  from  day  to  day  dur- 
ing each  of  said  months,  until  all  appeals  ready  for  hearing  are  heard 
and  disposed  of.  The  court  shall  hold  its  sessions  in  the  courthouse 
in  the  county  of  New  York,  and  it  shall  be  held  by  three  justices  of 
the  Supreme  Court,  duly  designated  to  hold  such  term. 

Rule  II.  The  clerk  of  such  term  of  the  Supreme  Court  shall  make 
up  a  calendar  of  all  appeals  to  be  heard  at  each  term,  and  publish  the 
same  in  The  Law  Journal  at  least  five  days  before  the  commencement 
of  the  term.  No  appeal  shall  be  placed  upon  such  calendar  unless  the 
return  from  the  court  below  is  duly  filed  with  the  clerk  of  such  term 
at  least  eight  days  before  the  commencement  of  the  term.  Upon  such 
return  being  filed  as  aforesaid  the  clerk  shall  place  the  appeal  upon 
the  calendar  in  the  order  in  which  the  return  was  filed.  The  order  of 
the  court  shall  be  annexed  to  the  return  and  filed  in  the  office  of  the 
county  clerk.  Appeals  shall  be  brought  on  for  argument  upon  notice 
of  eight  days. 

Rule  III.  If  the  appellant  does  not  procure  the  return  to  be  made 
to  the  court  within  the  time  prescribed  in  section  3053  of  the  Code  of 
Civil  Procedure,  the  respondent  may  move,  on  five  days'  notice,  to  dis- 
miss the  appeal,  and  such  appeal  will  be  dismissed  unless  such  Appel- 
late Term,  for  good  cause  shown,  extends  the  time  in  which  the  return 
may  be  filed.  If  the  court  below  shall  not  make  the  return  to  this 
court,  as  prescribed  by  the  Code,  the  appellant  may  move,  on  the  first 
day  of  such  Appellate  Term,  upon  five  days'  notice  to  the  attorney  for 
the  respondent,  and  to  the  trial  justice,  to  compel  such  return  by  at- 
tachment. All  other  motions  to  dismiss  an  appeal  shall  be  made  on 
five  days'  notice  on  the  first  day  of  an  Appellate  Term. 

Rule  IV.  Motions  for  reargument  will  only  be  heard  on  notice  to  the 
adverse  party,  at  the  next  succeeding  term  after  the  decision;  such 
notice  must  state  briefly  the  ground  upon  which  the  reargument  is  asked, 
and  such  motions  must  be  submitted  on  printed  briefs  stating  concisely 
the  points  supposed  to  have  been  overlooked  or  misapprehended  by  the 
court,  with  proper  reference  to  the  particular  portion  of  the  case  and 


Kules  for  Hearing  Appeals.  435 

the  authorities  relied  upon,  together  with  copies  of  the  opinions,  if  any, 
and  counsel  will  not  be  heard  orally. 

Rule  V.  In  the  argument  of  the  appeal,  not  more  than  fifteen  min- 
utes shall  be  occupied  by  counsel  on  either  side,  except  by  express  per- 
mission of  the  court. 

Rule  VI.  If  the  appellant  does  not  appear  upon  the  call  of  the  calen- 
dar, the  judgment  or  order  appealed  from  shall  be  affirmed.  If  the 
appellant  appears  and  the  respondent  fails  to  appear,  the  appellant  may 
either  argue  or  submit  his  case,  but  judgment  of  reversal  by  default 
will  not  be  allowed. 

Rule  VII.  An  application  to  appeal  to  the  Appellate  Division  of  the 
Supreme  Court  from  a  determination  of  the  Appellate  Term,  under  sec- 
tion 1344  of  the  Code  of  Civil  Procedure,  must  be  made  in  writing  on 
notice  to  the  adverse  party  upon  the  first  day  of  the  term  following  the 
term  in  which  the  case  was  decided;  and  such  application  must  set 
forth  in  full  the  special  reasons  why  such  an  appeal  should  be  allowed, 
and  must  be  submitted  without  oral  argument. 

Rule  VIII.  All  motions  may  be  made  under  Rule  III  upon  a  notice  of 
five  days.  Proof  of  service  of  such  notice  must  be  filed  with  the  clerk, 
together  with  a  note  of  issue,  on  the  Friday  preceding  the  commence- 
ment of  the  term,  in  all  other  cases,  whether  the  motion  be  founded 
upon  regular  notice  or  an  order  to  show  cause,  proof  of  service  of  the 
notice  or  order,  together  with  a  note  of  issue,  must  be  filed  with  the 
clerk  on  the  same  day.  The  motion  calendar  will  be  published  on  the 
Saturday  preceding  the  commencement  of  the  term,  but  no  motion  will 
be  placed  thereon,  except  upon  compliance  with  this  rule.  Appeals  will 
be  disposed  of  in  their  order  upon  the  calendar.  If  either  party  be  not 
ready  to  argue  the  case  orally  when  called  for  argument,  he  must  sub- 
mit, or  the  case  for  cause  shown  be  ordered  to  stand  over  until  the 
next  term.  Proposed  orders  must  be  presented  for  settlement  on  a 
notice  of  two  days.  Every  order  containing  a  provision  for  a  new  trial 
must  specify  the  time  and  place  of  the  new  trial  ordered  in  accordance 
with  the  provisions  of  section  3065  of  the  Code  of  Civil  Procedure. 

Second  Judicial  Department  in  the  Boroughs  of  Kings,  Queens, 

and  Richmond. 

All  appeals  from  judgments  rendered  in  the  Municipal  Court  of  the 
city  of  New  York  on  or  after  the  15th  day  of  November,  1898,  in  dis- 
tricts embraced  within  the  Second  Judicial  Department,  will  be  heard 
by  the  Appellate  Division  of  the  Supreme  Court  for  said  department. 
A  special  calendar  for  such  appeals  will  be  made  up  for  the  second  Fri- 
day of  each  term  of  this  court,  on  which  day  a  hearing  of  said  appeals 
will  be  had.  Either  party  may  bring  such  an  appeal  on  for  hearing  by 
a  notice  of  argument,  served  at  least  eight  days  prior  to  the  day  desig- 
nated for  the   hearing  of   the  appeal.     Upon  the   return   day  of  said 


436  Costs  and  Fees. 

notice  the  respondent  may,  upon  the  default  of  his  adversary  or  his 
failure  to  cause  the  return  of  the  Municipal  Court  to  be  filed  with  the 
clerk  of  this  court,  as  prescribed  by  these  rules,  take  a  judgment  of 
affirmance  or  an  order  dismissing  tbe  appeal  as  the  justice  of  the  case 
may  require;  and  it  shall  not  be  necessary  to  make  a  special  motion 
for  the  dismissal  of  any  appeal.  In  case  of  a  failure  of  any  justice 
of  the  Municipal  Court  to  make  return  to  this  court,  as  required  by 
section  3053,  Code  of  Civil  Procedure,  it  shall  be  the  duty  of  the  ap- 
pellant to  forthwith  apply  to  this  court,  under  the  provisions  of  sections 
3055  and  3056,  to  compel  such  return. 

Upon  the  filing  of  any  return  of  a  justice  of  the  Municipal  Court, 
and  upon  a  note  of  issue  filed  by  either  party,  at  least  three  days  be- 
fore the  day  for  hearing  said  appeals,  it  shall  be  the  duty  of  the  clerk 
to  put  the  appeal  on  the  calendar. 

The  appellant  shall  furnish  the  court  either  a  certified  or  stipulated 
copy  of  the  return  in  typewriting,  or,  at  his  election,  printed  copies 
of  the  return,  and  each  party  shall  file  five  copies  of  any  brief  or  points 
which  he  may  desire  to  submit. 

The  certified  or  stipulated  copy  of  the  return  and  brief  or  points 
must  be  filed  the  day  before  the  cause  is  placed  on  the  day  calendar. 

Note. —  There  are  no  sections  328  and  329. 


TITLE   X. 
Costs  and  Fees. 

Section    330.  When  prevailing  party  to  recover  costs. 

331.  When  neither  party  to  recover  costs. 

332.  Costs;    sums   allowed. 

333.  When  defendant  entitled  to  increased  costs. 

334.  Costs   on   demurrer. 

335.  Costs   on  amendment  of  pleading. 

336.  Costs  on  adjournment. 

337.  Costs  after  discontinuance,  upon  answer  of  title. 

338.  Costs  where  title  to  real  property,  in  question. 

339.  Costs  in  actions  upon  bastardy,  et  cetera,  bonds. 

340.  Costs  in  action  by  working  woman. 

341.  Taxation  of  costs. 

342.  Review  of  taxation. 

343.  Costs,  duty  of  clerk  on  taxation. 

344.  Costs,  affidavit  respecting  disbursements. 

345.  Costs  upon  appeal ;   to  whom. 

346.  Costs  upon  appeal ;   amount. 

347.  Fees  payable  to  clerks. 

348.  Employee's  action;  no  fees. 


§  330.  Costs  and  Fees.  437 

Section  349.  Fees,  property  of  city. 

350.  Fees  on  judgment,  in  county  clerk's  office. 

351.  Jurors'  fees. 

352.  Witnesses'  fees. 

353.  Stenographers'  fees. 

354.  Marshals'  fees. 

355.  Costs  on  order  to  prosecute  marshal's  bond. 

356.  Fees  in  summary  proceedings. 

§  330.  When  prevailing  party  to  recover  costs. —  Except  as 
specifically  prescribed  by  law,  a  party  who  recovers  judg- 
ment in  this  court  is  entitled  to  recover  as  costs  all  sums 
allowed  by  express  provision  of  law,  and  all  fees  and  dis- 
bursements prescribed  by  law  for  services  necessarily  ren- 
dered in  an  action  at  the  request  of  the  prevailing  party, 
and  paid  by  him. 

Notes  to  section  330. 

This  section  is  taken  from  section  3074  of  the  Code  of  Civil  Pro- 
cedure, relating  to  justices'  courts. 

For  tabulated  statement  of  "  Costs  and  Fees,"  see  notes  following 
§  356. 

Abandonment  or  bastardy  bond  actions. —  In  addition  to  the  other 
costs  in  these  actions  the  court  shall  make  and  the  clerk  shall  enter  on 
the  judgment  an  additional  allowance  of  ten  per  cent,  on  the  amount 
recovered.  §  339  of  this  act.  See  notes  to  §§  1  and  178,  subd.  4,  as 
to  the  jurisdiction  of  this  court  upon  such  bonds. 

Adjournment. —  Costs  on,  may  be  imposed  by  the  justice  as  he  deems 
reasonable.     §  336. 

Amendment. —  Court  may  impose,  in  its  discretion,  as  a  condition  of 
an  amendment,  the  payment  of  costs  to  the  adverse  party  not  exceeding 
$10.     §  335. 

Amount. —  Where  a  defendant  procures  a  discontinuance  upon  the 
ground  that  the  accounts  of  the  parties  exceed  $400,  and  plaintiff  there- 
upon brings  an  action  in  the  Supreme  Court  and  recovers  less  than 
$50,  defendant  is  estopped  from  claiming  that  the  justice  had  jurisdic- 
tion, and  so  that  he  is  entitled  to  costs.  Bradner  v.  Howard,  75  N.  Y. 
417,  affg.  14  Hun,  420. 

Appeal. —  For  costs  on  appeal,  see  §§  345  and  346. 

Attorney  must  have  filed  verified  pleading,  or  a  written  notice  of  ap- 
pearance to  recover  costs.     See   §   332. 

Id. —  Costs  belong  to  the  attorney  and  cannot  be  made  the  subject  of 
set-off  between  the  parties.  Husted  v.  Thomson,  26  Misc.  Rep.  548,  57 
N.  Y.  Supp.  558. 


438  Costs  a.\i>   Fees.  §330. 

Id.,  who  is  party,  appearing  in  person. —  A  plaintiff  who  is  an  attor- 
ney-at-law  may  recover  extra  costs,  although  he  himself  conducts  the 
prosecution  of  the  case.     Kopper  v.   Willis,  9  Daly,  460. 

An  attorney  who  issued  and  appears  in  propria  persona,  and  suc- 
ceeds in  the  action,  is  entitled  to  the  same  costs  as  if  he  had  appeared 
as  attorney  for  another.     Crommelvn  v.  Dmsmore,  1  City  Ct.  Rep.  69. 

Id.;   lien  for  costs.—  See  authorities  under  §  40. 

"  Costs,"  meaning  of  term. —  The  term  "  costs  "  generally  includes  dis- 
bursements of  all  kinds  in  the  action,  and  not  merely  those  fixed  sums 
which  are  allowed  as  a  compensation  for  the  labor  of  the  party  or  his 
attorney.  Wheeler  v.  Wrstgate.  4  How.  269 ;  Belding  v.  Conklin,  4  How. 
196;  Stone  v.  Duffy,  3  Sandf.  761. 

Department  of  health. —  In  case  of  recovery  for  less  than  $50,  the 
amount  of  costs  shall  be  $10.  If  no  recovery  by  the  board  of  health, 
the  judge  shall  certify  in  writing  that  there  was  not  reasonable  cause 
for  bringing  the  action,  and  in  such  case  the  costs  shall  not  exceed 
$10  unless  the  amount  claimed  exceed  $50.     Charter,  §§  1262  and  1287. 

Former  action;  costs  unpaid;  stay. —  A  subsequent  action  cannot  be 
brought  while  the  costs,  due  in  a  prior  action  for  the  same  subject- 
matter,  which  action  has  been  discontinued  with  costs,  remain  unpaid. 
Objection  that  costs  of  the  former  action  had  not  been  paid  must  be 
made  on  return  of  summons  and  before  complaint  entered,  and  certainly 
before  defendant  answers.  Flewelling  v.  Brandon,  4  Daly,  333.  See 
also  Hepburn  v.  Hepburn,  54  How.  466. 

A  former  suit  is  still  pending  until  the  costs  therein  are  paid  (Averill 
V.  Patterson,  10  N.  Y.  500),  and  this  rule  applies  to  this  court.  Flew- 
elling v.  Brandon,  4  Daly,  333. 

Where  the  costs  of  dismissal  of  a  previous  action  for  the  same  cause 
between  the  same  parties  are  paid  by  the  plaintiff  on  the  return  day  of 
the  summons,  the  defendant  is  not  entitled  to  have  the  plaintiff's  pro- 
ceedings stayed,  or  his  complaint  dismissed  by  reason  of  the  nonpay- 
ment of  such  costs,  before  beginning  the  second  action.  Lewis  v.  Davis, 
8  Daly,  185. 

Guardian  ad  litem. —  Responsibility  for  costs.     See  §  41. 

Jurisdiction,  want  of. —  The  rule  that  costs  will  not  oe  allowed  on 
the  dismissal  of  a  complaint  for  want  of  jurisdiction  applies  only  in 
cases  where  the  want  of  jurisdiction  appears  on  the  face  of  the  sum- 
mons or  complaint,  or  the  court  is  called  upon  to  adjudicate  the  ques- 
tion on  plea  or  demurrer.  Harriott  v.  N.  J.  R.  R.  T.  Co.,  1  Daly,  377 ; 
Gormlcy  v.  Mcintosh,  22  Barb.  271. 

Where  the  court  proves  to  have  no  jurisdiction  of  an  action,  it  may 
nevertheless  award  costs  against  plaintiff,  since  he  has  submitted  him- 
self to  the  jurisdiction.  Day  v.  Sun  Ins.  Office,  40  App.  Div.  305,  57 
N.  Y.  Supp.  1033. 


§  331.  Costs  and  Fees.  439 

Marshal. —  The  costs  of  motion,  not  exceeding  $10,  for  leave  to  prose- 
cute the  bond  shall  be  included  in  the  judgment  which  shall  be  obtained. 
§  355. 

Mechanic's  lien  action. —  The  costs  and  disbursements  are  the  same 
as  allowed  in  other  actions  in  this  court.     Code  Civ.  Proc,  §   3411. 

Offer. —  Upon  the  acceptance  by  plaintiff  in  replevin  of  defendant's 
offer  of  judgment  for  the  recovery  of  a  specified  chattel  and  $2  dam- 
ages for  its  detention,  with  costs,  plaintiff  is  entitled  to  but  $2  costs, 
though  he  demands  that  the  value  of  the  chattels  sued  for  be  fixed  at 
•$200,  and  damages  for  their  detention  at  $100.  Hausauer  v.  Macha- 
wice,  54  App.  Div.  23,  66  N.  Y.  Supp.  340. 

Motion  costs  to  be  included  in  the  judgment;  offset. — When  motion 
costs  are  granted,  they  are  to  be  included  in  the  judgment,  if  in  favor 
of  the  party  who  succeeds  at  the  trial,  or  if  in  favor  of  the  party  de- 
feated, offset  against  the  costs  of  the  successful  party.  Faber  v.  Flau- 
man,  30  Misc.  Rep.   627,  62  N.  Y.   Supp.   784. 

Poor  person. —  Section  461  of  the  Code  of  Civil  Procedure  construed 
as  to  payment  of  costs  accrued  prior  to  application.  Such  costs  must 
be  paid.     Lyons  v.  Murat,  4  Abb.  Pr.  N.  S.  13.     See  §§  45,  53. 

While  a  petition  for  leave  to  sue  as  a  poor  person,  which  alleges  the 
facts  upon  which  the  action  is  to  be  brought,  and  the  poverty  of  the 
plaintiff  makes  out  a  prima  facie  case,  yet  if  the  order  obtained  ex 
parte  is  challenged,  a  meritorious  cause  of  action  must  be  shown,  and 
on  this  question  the  dismissal  of  a  previous  suit  may  be  considered, 
though  the  statute  prescribes  that  nonpayment  of  the  costs  awarded 
against  the  plaintiff  therein  shall  not  pi'eclude  another  action.  Young 
v.  Nassau  Electric  R.  R.  Co.,  34  App.  Div.   126,  54  N.  Y.  Supp.  600. 

Res  adjudicata;  dismissing  an  action. —  A  judgment,  dismissing  an 
action  on  the  ground  of  want  of  jurisdiction,  is  res  adjudicata  as  to 
plaintiff's  right  to  costs  in  an  action  for  the  same  cause  in  a  court  of 
record,  where  his  recovery  is  less  than  $50.  Kirk  v.  Blashfield,  4  Hun, 
269. 

Workingman. —  For  costs  in   action  by,  see  §  340. 

§  331.  When  neither  party  to  recover  costs In  either  of 

the  following  cases,  costs  shall  not  be  awarded  to  either 
party,  but  each  party  must  pay  his  own  costs. 

1.  Where  the  action  is  dismissed  by  reason  of  the  failure 
of  both  parties  to  attend. 

2.  Where  the  defendant  interposes  an  answer  that  title 
to  real  property  will  come  in  question,  and  gives  the  under- 
taking thereon  prescribed  in  this  act. 


440  Costs  and   Fees.  §332. 

3.  Where  the  action  is  discontinued  on  the  ground  that 
the  plaintiff  or  defendant  is  an  infant,  for  whom  a  guardian 
ad  litem  has  not  been  appointed. 

4.  Where  the  defendant  interposes  plea  of  bankruptcy. 

Notes  to  section  331. 

This  section  is  taken  from  section  3075  of  the  Code  of  Civil  Pro- 
cedure, relating  to  justices'  courts. 

Answer  of  title  to  real  property. —  Defendant  to  give  undertaking. 
See  §  180. 

Building  Code. —  Action  to  recover  penalty  for  violation  of  this  Code. 
Department  of  buildings,  or  any  officer  thereof,  or  the  corporation  of  the 
city  of  New  York,  or  any  defendant,  not  liable  for  costs,  unless  specially 
ordered,  etc.  §  151,  Building  Code;  Thomson's  Greater  New  York 
Charter,  p.   10:5:). 

Fire  commissioner. —  No  fees  or  costs  shall  be  demanded  of  him  in 
an  action  to  recover  a  penalty.  Charter,  §  773,  until  changed  by  the 
board  of  aldermen. 

§  332.  Costs;  sums  allowed.— In  all  actions  brought  in  this 
court  there  shall  be  allowed  to  the  prevailing  party,  if  he 
shall  have  appeared  by  an  attorney  at  law,  who  files  a  veri- 
fied pleading,  or  a  written  notice  of  appearance,  the  follow- 
ing sums  as  costs.  Where  an  action  is  removed  as  provided 
in  section  three  of  this  act,  costs  shall  be  allowed  the  same 
as  if  the  action  had  been  commenced  in  the  court  to  which 
it  is  removed. 

1.  To  either  party. —  Where  the  amount  demanded  in  the 
summons  is  under  fifty  dollars,  or  where  the  amount  de- 
manded is  under  fifty  dollars  and  defendant  interposes  a 
counterclaim  under  fifty  dollars,  the  court  may,  in  its  dis- 
cretion, award  a  sum  not  exceeding  five  dollars. 

2.  To  the  plaintiff. —  Where  after  the  trial  of  an  issue  of 
fact  raised  by  appearance  and  answer  of  defendant,  plaintiff 
recovers  judgment :  For  fifty  dollars  and  under  one  hun- 
dred dollars,  ten  dollars;  for  one  hundred  dollars  and  under 
two  hundred  dollars,  fifteen  dollars;  for  two  hundred  dollars 
and  under  three  hundred  dollars,  twenty  dollars;  for  three 
hundred  dollars  and  under  four  hundred  dollars,  twenty-five 
dollars;  for  four  hundred  dollars  or  over,  thirty  dollars.     If 


§  332.  Costs  and  Fees.  441 

the  action  is  for  the  recovery  of  a  chattel  the  amount  of 
costs  shall  be  governed  by  the  value  of  the  chattel  as  deter- 
mined in  the  judgment. 

3.  To  the  plaintiff. —  Where,  upon  the  nonappearance,  or 
failure  of  defendant  to  answer,  plaintiff  recovers  judgment : 
For  fifty  dollars  and  under  one  hundred  dollars,  five  dollars; 
for  one  hundred  dollars  and  under  two  hundred  dollars, 
seven  dollars  and  fifty  cents;  for  two  hundred  dollars  and 
under  three  hundred  dollars,  ten  dollars;  for  three  hundred 
dollars  and  under  four  hundred  dollars,  twelve  dollars  and 
fifty  cents;  for  four  hundred  dollars  or  over,  fifteen  dollars. 
If  the  action  is  for  the  recovery  of  a  chattel  the  amount  of 
costs  shall  be  governed  by  the  value  of  the  chattel  as  deter- 
mined in  the  judgment. 

4.  To  the  plaintiff. —  Where  the  action  brought  by  the 
plaintiff  is  for  a  sum  less  than  fifty  dollars,  and  the  defend- 
ant shall  have  interposed  a  counterclaim  amounting  to  fifty 
dollars  or  over,  and  the  plaintiff  recovers  judgment  upon  the 
nonappearance  of  defendant,  the  same  sum  as  plaintiff  would 
be  entitled  to  recover  on  default  if  the  amount  of  his  claim 
was  the  amount  of  defendant's  counterclaim. 

5.  To  the  defendant. —  Where  defendant  recovers  judg- 
ment after  the  trial  of  an  issue  of  fact,  raised  by  appearance 
and  answer,  costs  shall  be  awarded  to  the  defendant,  at  the 
rate  prescribed  in  subdivision  two  based  upon  the  amount 
of  plaintiff's  demand  in  the  summons.  If  the  action  is  for 
the  recovery  of  a  chattel,  the  amount  of  costs  shall  be  gov- 
erned by  the  value  of  the  chattel,  as  set  forth  in  the  affi- 
davit of  plaintiff. 

6.  To  the  defendant. —  Where  defendant  recovers  judg- 
ment on  the  non-appareance  of  the  plaintiff,  costs  shall  be 
awarded  to  the  defendant  at  the  rates  prescribed  in  subdi- 
vision three,  based  upon  the  amount  of  plaintiff's  demand 
in  the  summons.  If  the  action  is  for  the  recovery  of  a  chat- 
tel the  amount  of  costs  shall  be  governed  by  the  value  of  the 
chattel  as  set  forth  in  the  affidavit  of  plaintiff. 

7.  To  the  defendant. —  Where  after  the  trial,  of  an  issue 
of  fact,  raised  by  his  appearance  and  answer,  and  counter- 
claim, the  defendant  recovers  judgment :     For  fifty  dollars 


442  Costs  and  Fees.  §  332. 

and  under  one  hundred  dollars,  ten  dollars;  for  one  hun- 
dred dollars  and  under  two  hundred  dollars,  fifteen  dollars; 
for  two  hundred  dollars  and  under  three  hundred  dollars, 
twenty  dollars;  for  three  hundred  dollars  and  under  four 
hundred  dollars,  twenty-five  dollars;  for  four  hundred  dol- 
lars or  over,  thirty  dollars. 

8.  To  the  defendant. —  Where,  upon  the  non-appearance  of 
the  plaintiff  after  issue  joined  and  defendant  shall  have 
interposed  a  counterclaim  and  recovers  judgment :  For  fifty 
dollars  and  under  one  hundred  dollars,  five  dollars;  for  one 
hundred  dollars  and  under  two  hundred  dollars,  seven  dol- 
lars and  fifty  cents;  for  two  hundred  dollars  and  under 
three  hundred  dollars,  ten  dollars;  for  three  hundred  dol- 
lars and  under  four  hundred  dollars,  twelve  dollars  and  fifty 
cents;  for  four  hundred  dollars  or  over,  fifteen  dollars. 

9.  Upon  settlement  of  case  after  service  of  summons,  and 
"before  trial,  plaintiff  shall  be  entitled  to  costs  at  the  rate 
prescribed  in  subdivision  three  of  this  section,  determined 
by  the  amount  of  the  settlement. 

10.  Upon  settlement  of  case  after  trial  and  before  entry 
of  judgment  plaintiff  shall  be  entitled  to  costs  at  the  rate 
prescribed  in  subdivision  two  of  this  section,  determined  by 
the  amount  of  the  settlement. 

Notes  to  section  332. 

This  section  is  new  and  is  based  upon  the  general  principle  of  costs 
relating  to  justices'  courts,  with  a  graduated  scale.  It  is  taken,  among 
others,  principally  from  section  1417  of  the  Consolidation  Act  (Laws 
1882,  chap.  410),  which  was  taken  from  Laws  1857,  chap.  344,  §  68,  as 
amended  by  Laws  1868,  chap.  308,  and  from  Laws  1857,  chap.  295,  §§7 
and  8;  Laws  1870,  chap.  741,  §  4,  and  section  1420  of  the  Consolidation 
Act,  which  was  originally  Laws  1857,  chap.  344,  §  70. 

It  will  be  observed  that  costs  are  only  allowed  to  the  prevailing  party 
"  if  he  shall  have  appeared  by  an  attorney,  who  filed  a  verified  pleading 
or  a  written  notice  of  appearance." 

Costs  only  to  an  attorney. —  Plaintiff  recovering  judgment  is  not 
entitled  to  costs,  where  it  does  not  appear  that  he  had  an  attorney 
actually  engaged  in  the  prosecution  of  the  action.  Bacon  v.  Combes, 
65  N.  Y.  Supp.  510. 


§§  333,  334.  Costs  and  Fees.  443 

Trial  has  been  had  where  the  defendant's  attorney  cross-examines 
the  plaintiff  with  a  view  to  defeat  his  recovery,  and  $5  costs  may  be 
allowed.     Neallis  v.  Meyer,  21  Misc.  Rep.  344. 

§  333.  When  defendant  entitled  to  increased  costs. —  In 
either  of  the  following  cases,  a  defendant  in  whose  favor  a 
final  judgment  is  rendered,  in  an  action  wherein  the  com- 
plaint demands  judgment  for  a  sum  of  money  only,  or  to 
recover  a  chattel;  or  a  final  order  is  made,  in  a  special  pro- 
ceeding instituted  by  a  state  writ,  is  entitled  to  recover  the 
costs,  prescribed  in  section  three  hundred  and  thirty-two  of 
this  act,  and,  in  addition  thereto,  one-half  thereof: 

1.  "Where  the  defendant  is  or  was  a  public  officer,  ap- 
pointed or  elected  under  the  authority  of  the  state,  or  a 
person  specially  appointed,  according  to  law,  to  perform  the 
duties  of  such  an  officer;  and  the  action  or  special  proceed- 
ing was  brought  by  reason  of  an  act,  done  by  him  by  virtue 
of  his  office,  or  an  alleged  omission  by  him,  to  do  an  act, 
which  it  was  his  official  duty  to  perform. 

2.  Where  the  action  was  brought  against  the  defendant, 
by  reason  of  an  act  done,  by  the  command  of  such  an  officer 
or  person,  or  in  his  aid  or  assistance  touching  the  duties  of 
the  office  or  appointment. 

3.  Where  the  action  was  brought  against  the  defendant, 
for  taking  a  distress,  making  a  sale,  or  doing  any  other  act, 
by  or  under  a  color  of  authority  of  a  statute  of  the  state. 

But  this  section  does  not  apply,  where  an  officer,  or  other 
person,  specified  herein,  unites  in  his  answer  with  a  person 
not  entitled  to  such  additional  costs. 

Note  to  section  333. 

This  section  is  the  same  as  section  3258  of  the  Code  of  Civil  Pro- 
cedure, relating  to  justices'  courts.  See  also  at  the  end  of  §  356,  tabu- 
lated costs,  etc. 

§  334.  Costs  on  demurrer. —  Where  a  judgment  is  rendered 
on  the  trial  of  a  demurrer,  the  prevailing  party  shall  recover 
the  same  costs  as  if  the  judgment  had  been  in  his  favor, 
upon  the  default  in  the  same  action.     Otherwise  costs  shall 


444  Costs  and  Fees.         §§  335,  336,  337. 

not  exceed  ten  dollars  in  the  discretion  of  the  justice,  as  a 
condition  for  leave  to  plead  over. 

Note  to  section  334. 

This  section  is  taken  from  section  3077  of  the  Code  of  Civil  Pro- 
cedure, relating  to  justices'  courts.  See  tabulated  statement  of  costs 
at  the  end  of  §  356. 

§  335.  Costs  on  amendment  of  pleading. —  The  court  may, 
in  its  discretion,  as  a  condition  for  allowing  an  amendment 
to  a  pleading,  require  the  payment  of  a  sum  not  to  exceed 
ten  dollars  as  costs  to  the  adverse  party. 

Note  to  section  335. 

This  section  is  taken  from  section  2944  of  the  Code  of  Civil  Pro- 
cedure, relating  to  justices'  courts,  made  applicable  to  this  court  by 
section   1347   of  the  Consolidation  Act    (Laws   1882,  chap.  410). 

§  336.  Costs  on  adjournment —  When  a  trial  shall  be  ad- 
journed on  cause  shown,  -the  justice,  in  his  discretion,  may 
impose  upon  the  party  applying  for  the  adjournment  such 
conditions  as  to  him  shall  seem  reasonable,  and  may  also 
impose  costs  to  the  amount  of  ten  dollars,  besides  disburse- 
ments, as  a  condition  of  adjournment. 

Notes  to  section  336. 

This  section  is  taken  from  sections  1365  and  1420,  subdivision  3,  of 
the  Consolidation  Act  (Laws  1882,  chap.  410),  which  originally  were 
Laws  1857,  chap.  344,  §§  28  and  70. 

Trial;  nonpayment  of  costs. —  Costs  may  be  imposed  as  a  condition 
of  granting  an  adjournment  to  defendant,  but  their  nonpayment  will 
not  preclude  him  from  participating  in  the  trial  on  the  adjourned  day. « 
Father  v.  Flauman,  30  Misc.  Rep.  627,  62  N.   Y.   Supp.  784,  7  N.  Y. 
Annot.  Cas.  267. 

§  337.  Costs  after  discontinuance,  upon  answer  of  title. — 
When  an  action  brought  in  this  court,  has  been  discontinued, 
as  prescribed  in  this  act,  upon  the  delivery  of  an  answer 
showing  that  title  to  real  property  will  come  in  question, 
and  a  new  action  for  the  same  cause  has  been  commenced 


§  337.  Costs  and  Fees.  445 

in  the  proper  court;  the  party  in  whose  favor  final  judgment 
is  rendered  in  the  new  action,  is  entitled  to  costs;  except 
that  where  final  judgment  is  rendered  therein,  in  favor  of 
the  defendant,  upon  the  trial  of  an  issue  of  fact,  he  is  not 
entitled  to  costs,  unless  it  is  certified  that  the  title  to  real 
property  came  in  question  on  the  trial. 

Notes  to  section  337. 

Thi9  section  is  taken  from  section  1421  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  which  was  taken  from  section  3235  of  the  Code 
of  Civil  Procedure,  applicable  to  justices'  courts.  See  also  §§  182  and 
338. 

Dismissal  of  complaint. —  The  plaintiff  discontinued  an  action, 
brought  for  a  trespass  upon  lands,  upon  a  plea  of  title  and  a  general 
denial  being  interposed  by  the  defendant.  Thereafter  he  brought  this 
action  for  the  same  cause,  and  the  same  defenses  were  again  pleaded. 
Upon  the  trial,  the  plaintiff  having  given  no  evidence  to  prove  the  tres- 
pass alleged  in  the  complaint,  the  court,  on  motion  of  the  defendant, 
dismissed  the  complaint.  Held,  that  there  was  no  "  trial  of  an  issue  of 
fact,"  within  the  meaning  of  those  terms  as  used  in  the  exception  con- 
tained in  section  3235,  and  that  defendant  was  entitled  to  costs.  Gates 
v.  Canfield,  28  Hun,  12,  04  How.  81,  15  Week.  Dig.  389,  revg.  2  Civ. 
Proc.  Rep.  254. 

New  action. —  As  to  costs  in  new  suit  when  original  action  had  been 
dismissed  on  the  ground  that  title  to  real  estate  would  come  in  ques- 
tion, see  Locklin  v.  Casler,  50  How.  43. 

An  action  to  recover  the  expense  of  building  the  defendant's  portion 
of  a  division  fence  between  the  adjoining  lands  of  the  parties  was  com- 
menced and  discontinued  upon  defendant's  objection  as .  involving  the 
title  to  real  estate.  On  the  trial  of  the  action  afterward  commenced  in 
the  Supreme  Court,  it  appeared  that  there  was  no  dispute  as  to  the 
location  of  the  division  line  where  the  fence  was  to  be  placed;  but  that 
the  question  litigated  was  whether  the  fence  was  or  was  not  upon  the 
line.  Held,  that  the  title  to  real  property  did  not  come  in  question  on 
the  trial.  That  the  plaintiff  was  entitled  to  costs  under  section  3235. 
Collins  v.  Adams,  19  N.  Y.  St.  Rep.  48. 

On  offer  by  defendant.—  Where  the  defendant  before  answering  of- 
fered to  allow  judgment  against  him  for  a  certain  sum,  and  upon  plea 
of  title  the  action  was  discontinued  and  brought  in  the  Supreme  Court, — 
Held,  that  the  action  here  was  identical  with  that  in  the  justice's  court, 
and  the  defendant  entitled  to  costs  on  recovery  by  the  plaintiff  of  less 
than  the  sum  offered.  The  Niagara  Falls  Suspension  Bridge  Co.  v. 
BacJcman,  4  Lans.  523. 


44G  Costs  and   Fees.  §§338,339. 

§  338.  Costs  where  title  to  real  property  in  question. — 
Where  plaintiff's  complaint  is  dismissed,  pursuant  to  section 
one  hundred  and  eighty-four  of  this  act,  defendant  shall  ho 
entitled  to  recover  the  costs  provided  in  subdivision  two  of 
section  three  hundred  and  thirty-two  of  this  act. 

Notes  to  section  338. 

This  section  is  taken  from  sections  1354  and  1421  of  the  Consolidation 
Act   (Laws  1882,  chap.  410). 

Section  1354  of  the  Consolidation  Act  is  the  same  as  section  2956 
of  the  Code  of  Civil  Procedure,  relating  to  justices'  courts,  and  section 
1421  of  the  Consolidation  Act  was  taken  from  section  3235  of  the  Code 
of  Civil  Procedure,  also  applicable  to  justices'  courts. 

The  amount  of  costs  is  specifically  fixed  as  provided  in  section  332. 

Section  184  is  entitled  "  Title  appearing  from  plaintiff's  own  show- 
ing."    See  also  §§  182  and  337. 

Recovery  under  $50. — Where  the  recovery  is  less  than  $50  in  the 
higher  court,  the  plaintiff  is  still  entitled  to  costs  where  there  is  no 
certificate  of  the  court  that  title  to  real  property  came  in  question  on 
the  trial.     Blake  v.  James,  19   How.  321. 

Where  the  defendant  pleaded  title,  and  upon  removal  succeeded  on 
the  same  issues  as  to  which  such  title  was  pleaded,  plaintiff  upon  re- 
covery of  six  cents  on  other  issues  is  not  entitled  to  costs.  Shufclt  v. 
Sweet,  15  Week.  Dig.   1. 

In  an  action  for  trespass  defendant  pleaded  title  to  a  portion  of  the 
premises;  that  action  was  thereupon  discontinued  and  one  commenced 
in  the  Supreme  Court,  wherein  the  pleadings  were  substantially  the 
same.  Defendant  succeeded  on  the  issues  affecting  the  premises  as  to 
which  title  was  pleaded.  Neither  possession  of  nor  the  title  to  the  resi- 
due was  made  a  question  upon  the  trial  by  defendant,  and  the  amount 
of  the  recovery  for  trespass  thereon  was  less  than  $50.  Held,  that 
under  section  61  of  the  Code,  the  costs  in  such  case  are  to  be  governed 
by  the  decision  and  judgment  on  the  issue  presented  by  the  plea  of 
title;  that  plaintiff,  by  claiming  title  to  land  not  owned  by  him,  caused 
all  the  costs  which  accrued  in  the  Supreme  Court;  he  therefore  could 
not  recover  costs,  but  was  properly  chargeable  with  defendant's.  Mdrss 
v.  Salisbury,  48  N.  Y.  636. 

§  339.  Costs  in  action  upon  bastardy,  et  cetera,  bonds. — 
Upon  a  recovery  being  had  in  an  action  brought  upon  a  bas- 
tardy or  abandonment  bond,  by  the  commissioner  of  public 
charities,  or  the  overseers  of  the  poor,  in  addition  to  the 
other  costs  therein,  the  court  shall  make  and  the  clerk  shall 


§§  340,  341.  Costs  and  Fees.  447 

enter  in  the  judgment,  an  additional  allowance  of  ten  per 
centum  of  the  amount  recovered. 

Notes  to  section  339. 

This  section  is  the  same  as  section  1422  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  which  was  taken  from  section  2,  chapter  389, 
Laws  1862. 

See  note  to  §  1,  subd.  4,  as  to  whether  this  court  has  jurisdiction 
in  an  action  upon  a  bastardy  or  abandonment  bond.  See  also  §  178 
and  notes. 

§  340.  Costs  in  action  by  working  woman. —  In  an  action 
brought  to  recover  a  sum  of  money  for  wages  earned  by  a 
female  employee,  other  than  a  domestic  servant;  or  for  ma- 
terial furnished  by  such  an  employee,  in  the  course  of  her 
employment,  or  in  or  about  the  subject-matter  thereof,  or 
for  both,  the  plaintiff,  if  entitled  to  costs,  recovers  the  sum 
of  ten  dollars  as  costs,  in  addition  to  the  costs  allowed  in 
this  court,  unless  the  amount  of  damages  recovered  is  less 
than  ten  dollars;  in  which  case,  the  plaintiff  recovers  the 
sum  of  five  dollars  as  such  additional  costs.  When  the  em- 
ployee is  the  plaintiff  in  such  an  action,  she  is  entitled  upon 
a  settlement  thereof,  to  the  full  amount  of  costs,  which  she 
would  have  recovered,  if  judgment  had  been  rendered  in 
her  favor,  for  the  sum  received  by  her  upon  the  settlement. 

Notes  to  section  340. 

This  section  is  the  same  as  section  1424  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  which  was  taken  from  sections  3131  and  3222 
of  the  Code  of  Civil  Procedure. 

Who  is  not  an  employee? — Appellant,  who  was  paid  for  the  various 
items  of  service  performed  by  her  for  defendants,  and  not  receiving  a 
stated  salary,  and  who  conducted  her  work  in  a  room  hired  by  herself 
at  her  own  expense  and  who  hired  and  paid  her  assistants, — Held  not 
an  employee  entitled  to  extra  costs  under  section  1424  of  the  Consoli- 
dation Act,  and  under  Code  Civ.  Proc.,  §§  3131,  3222,  or  to  execution 
against  the  person  under  section  3221.  Berger  v.  Mandel,  25  Misc. 
Rep.  766,  54  N.  Y.  Supp.  987. 

§  341.  Taxation  of  costs. —  Where  judgment  has  been  ren- 
dered by  the  justice,  costs  must  be  taxed  by  the  clerk  and 


448  Costs  and  Fees.  §  342. 

inserted  in  the  judgment.  Before  any  item  of  costs  other 
than  the  costs  fixed  by  the  express  provision  of  law  or 
granted  by  the  justice  or  fees  paid  to  the  clerk  in  the  action 
are  allowed,  the  party  must  show  by  his  affidavit,  or  that 
of  his  attorney,  that  the  item  was  actually  and  legally  paid 
and  incurred.  All  items  of  cost  must  be  entered  by  the 
clerk  in  the  docket  book  kept  by  him.  The  clerk  shall  like- 
wise tax  costs  allowed  by  the  appellate  court. 

Notes  to  section  341. 

This  section  is  new  and  is  taken  partly  from  section  3078  of  the 
Code  of  Civil  Procedure,  relating  to  justices'  courts. 

Costs  on  appeal. —  See  §§  345  and  34G;  they  are  to  be  taxed  by  the 
clerk  of  this  court  by  this  section. 

Taxation  by  the  court;  marshal's  fees,  etc. —  Fees  of  marshal  for 
trouble  and  expenses  in  taking  possession  of  and  preserving  property 
replevied  were  formerly  left  to  the  discretion  of  the  justice  under 
Consolidation  Act,  §  1711  (Stewart  v.  The  Fidelity,  etc.,  19  Misc.  Rep. 
419)  ;  but  now  they  are  taxed  by  the  court.     See  §  104. 

Trial  fee  cannot  be  recovered  back  from  the  clerk. — Where  a  veri- 
fied answer  has  been  filed  in  ,  this  court  and  the  issue  adjourned, 
and  when  called  for  trial,  defendant  defaults  and  plaintiff  proves  his 
case,  this  amounts  to  a  trial  for  purposes  of  costs,  and  plaintiff  can- 
not recover  back  the  trial  fee  paid  to  the  clerk.  People  ex  rel.  Kemper 
v.  Wilson,  34  Misc.  Rep.  273,  68  N.  Y.  Supp.  850. 

Tabular  statement  of  costs  and  fees. —  See  end  of  §  356. 

§  342.  Review  of  taxation. —  A  taxation  may  be  reviewed 
by  the  justice  sitting  in  the  district,  within  five  days  after 
the  entry  of  judgment,  upon  two  days'  notice.  The  order 
made  upon  such  a  motion  must  disallow  any  item  wrong- 
fully included  in  the  judgment,  or  add  any  item  wrongfully 
omitted  therefrom,  and  direct  that  any  sum  so  disallowed 
be  credited  upon  the  judgment  and  upon  any  execution  or 
other  mandate  issued  to  enforce  the  judgment.  Unless 
such  review  is  asked  for,  such  taxation  shall  not  be  there- 
after questioned  on  appeal. 

Note  to  section  342. 

This  section  is  new  and  is  taken  from  sections  3262  to  3265  of  the 
Code  of  Civil  Procedure,  relating  to  justices'  courts. 


§§  343, 344.  Costs  and  Fees.  449 

§  343.  Costs ;  duty  of  clerk  on  taxation. —  The  clerk  must 
examine  all  items  presented  to  him  for  taxation ;  must  satisfy 
himself  that  all  the  items  allowed  by  him  are  correct  and 
legal;  and  must  strike  out  all  charges  for  fees,  where  it 
does  not  appear  that  the  services  for  which  they  are  charged 
were  necessarily  performed. 

Notes  to  section  343. 

This  section  is  taken  from  section  32(50  of  the  Code  of  Civil  Pro- 
cedure. By  section  341  the  clerk  of  this  court  must  tax  the  costs  on 
appeal. 

Prospective  charges  and  fees  on  docket  in  county  clerk's  office.  See 
§    350. 

§  344.  Costs ;  affidavit  respecting  disbursements. —  A  charge, 
for  the  attendance  of  a  witness,  cannot  be  allowed  without 
an  affidavit,  stating  the  number  of  days  of  his  actual  attend- 
ance; and,  if  travel  fees  are  charged,  the  distance  for  which 
they  are  allowed.  A  charge,  for  a  copy  of  a  document  or 
paper,  cannot  be  allowed,  without  an  affidavit  stating  that 
it  was  actually  and  necessarily  used,  or  was  necessarily  ob- 
tained for  use.  An  item  of  disbursements,  in  a  bill  of  costs, 
cannot  be  allowed  in  any  case,  unless  it  is  verified  by  affidavit, 
and  appears  to  have  been  necessarily  incurred  and  to  be  rea- 
sonable in  amount,  except  fees  paid  to  the  clerk. 

Notes  to  section  344. 

This  section  is  taken  from  section  3267  of  the  Code  of  Civil  Pro- 
cedure. 

Clerk  of  this  court  must  tax  the  costs  on  appeal.     See  §  341. 

Disbursements  arc  allowed  by  section  330. 

Upon  the  recovery  of  nominal  damages  for  the  breach  of  a  contract 
of  sale,  the  seller  is  entitled  to  recover  as  of  right  "  the  disbursements 
now  allowed  by  law  and  also  the  prospective  charges  for  docketing  judg- 
ment in  the  county  clerk's  office,  the  fee  of  the  county  clerk  for  issuing 
an  execution  and  filing  certificate  of  satisfaction,  and  the  sheriff's  fee 
for  receiving  and  returning  one  execution  thereon  "  as  provided  in  the 
Consolidation  Act,  §  1420,  as  amended  by  Laws  1894,  chap.  750,  made 
applicable  to  this  court  by  section  1369  of  the  Charter.  National  Cash 
Register  Co.  v.  Schmidt,  48  App.  Div.  472,  62  N.  Y.  Supp.  952. 

Tabulated  statement  of  costs  and  fees. —  See  end  of  §  356. 
29 


450  Costs  and  Fees.  §  345. 

§  345.  Costs  upon  appeal;  to  whom. —  Upon  an  appeal  pro- 
vided  for  in  this  act,  the  award  of  costs  is  regulated  aa 
follows : 

1.  If  the  appeal  is  dismissed  because  neither  party  brings 
it  to  a  hearing,  as  prescribed  by  law,  costs  shall  not  be 
awarded  to  either  party. 

2.  If  the  judgment  or  final  order  is  reversed,  costs  must 
be  awarded  to  the  appellant. 

3.  If  the  judgment  or  final  order  is  affirmed,  costs  must 
be  awarded  to  the  respondent. 

4.  If  the  judgment  or  final  order  is  modified  or  a  new  trial 
is  ordered,  costs,  or  such  part  thereof,  as  to  the  appellate 
court  seems  just,  besides  disbursements,  may  be  awarded  to 
either  party,  absolutely,  or  to  abide  the  event. 

Notes  to  section  345. 

This  section  is  taken  from  sections  3060,  3066,  and  32 13  of  the  Code 
of  Civil  Procedure,  which  are  applicable  to  justices'  courts.  See  also 
§  310. 

Appeal  from  judgment  on  default;  no  respondent. —  Where  an  inquest 
was  taken  for  default  in  appearance  by  defendant,  and  the  justice  dis- 
missed the  complaint,  the  remedy  is  by  appeal;  but  whether  the  judg- 
ment is  reversed  and  a  new  trial  ordered,  or  the  judgment  affirmed, 
no  costs  will  be  allowed,  there  being  no  respondent.  Katz  v.  Diamond, 
16  Misc.  Rep.  577. 

Clerk  of  this  court  must  tax  the  costs  on  appeal.    See  §  341. 

A  matter  of  right. —  The  court  must  award  costs  to  the  respondent 
in  affirming  a  judgment,  and  the  court  has  no  power  to  relieve  the  party 
against  whom  a  decision  is  made  on  appeal  from  costs.  Logue  v.  Gil- 
lick,  1  E.  D.  Smith,  398.  On  reversing  a  judgment,  the  court  has  no 
discretion  as  to  the  costs.  Hahn  v.  Van  Doren,  1  E.  D.  Smith,  411; 
Maine  v.  Eagle,  1  E.  D.  Smith,  621 ;  Chapin  v.  Churchill,  12  How.  Pr. 
367. 

Where  a  judgment  on  appeal  was  reversed,  and  by  inadvertence  no 
costs  were  allowed  to  the  appellant,  the  court,  upon  application,  modi- 
fied the  order  of  reversal,  and  gave  the  appellant  costs.  If  the  judg- 
ment is  reversed,  the  appellant  is  entitled  to  costs  as  a  matter  of  right, 
and  the  court  has  no  power  to  deprive  him  of  them.  Wood  v.  Brown, 
6  Daly,   428. 

Modified  judgment  or  order,  or  new  trial  ordered. —  See  §  310,  and 
also  Rcibert  v.  Backenstross,  71  Hun,  519;  De  Bevoise  v.  Ingalls,  88. 
Hun,  186.     See  Southard  v.  Becker,  15  Misc.  Rep.  436. 


§  346.  Costs  and  Fees.  451 

Must  be  given  on  affirmance;  when  discretionary. —  Under  sections 
3060,  3066,  subdivision  3,  and  3067,  costs  must  be  awarded  to  the  re- 
spondent upon  affirming  on  appeal  a  judgment;  the  provision  of  section 
3213  gives  discretion  as  to  costs  only  where  a  judgment  is  modified  or 
a  new  trial  ordered.  Eisler  v.  The  Union  Transfer  Co.,  16  Daly,  456. 
See  §  310. 

New  trial. —  Where  the  judgment  has  been  reversed  and  new  trial 
granted,  with  costs  to  abide  the  event,  such  costs  are  now  to  be  taxed 
by  the  clerk  of  this  court  as  provided  by  section  341.  This  provision 
nullifies  the  decisions  in  Van  Bussam  v.  The  Metropolitan  etc.,  16 
Misc.  Rep.  40:  Schleainger  v.  Mayer,  etc.,  20  Misc.  Rep.  353;  s.  c,  45 
N.  Y.   Supp.   934. 

Order,  reversal  of;  how  enforced. —  Where  the  Appellate  Term  re- 
verses an  order  setting  aside  a  judgment  taken  by  default,  because  the 
defendant  was  not  duly  served,  the  direction  of  the  Appellate  Term 
awarding  costs  to  the  appellant  is  final,  and  may  be  enforced  as  in 
case  costs  are  awarded  by  final  judgment.  Szerlip  v.  Baicr,  21  Misc. 
Rep.  692,  47  N.  Y.  Supp.  1081.  See  also  Bradley  8.  Co.  v.  Meinhold, 
23  Misc.  Rep.  458,  52  N.  Y.  Supp.  679. 

Tabulated  costs  and  fees. —  (See  end  of  §  356. 

§  346.  Costs  upon  appeal ;  amount. —  Upon  an  appeal,  pro- 
vided for  in  this  act,  costs  when  awarded  must  be  as  follows, 
besides  disbursements : 

To  the  appellant  upon  reversal,  thirty  dollars. 

To  the  respondent  upon  affirmance,  twenty-five  dollars. 

Notes  to  section  346. 

This  section  is  the  same  as  section  3067  of  the  Code  of  Civil  Procedure. 

By  section  341,  the  clerk  of  the  court  must  tax  the  costs  on  appeal. 

Tabulated  costs,  etc. —  See  end  §  356. 

Judgment  costs  on  reversal. —  On  appeal  from  a  judgment  the  appel- 
lant on  reversal  is  entitled  to  $30  costs,  besides  cost  of  the  court  below. 
Clark  v.  Carroll,  61  How.  Pr.  47. 

Order  opening  a  judgment,  reversal  of. —  Where  a  justice  makes  an 
order  opening  a  judgment,  under  section  1367  of  the  Consolidation  Act, 
as  amended  by  chapter  748  of  the  Laws  of  1896,  providing  that  from 
such  an  order  "an  appeal  shall  lie  as  from  a  judgment,"  the  provisions 
of  section  3067  of  the  Code  of  Civil  Procedure  apply  to  the  matter  of 
costs,  and  a  party  who  successfully  appeals  from  the  order  is,  by  the 
terms  of  that  section,  entitled  to  $30  costs  upon  a  reversal.  Colioell  v. 
Devlin,  20  Misc.  Rep.  616. 

Upon  the  reversal  of  an  order  opening  a  default  without  stating  the 
reason  therefor,  in  which  case  the  cause  is  remitted  to  the  justice  for  a 


452  Costs  and  Fees.  §  347. 

rehearing,  the  costs  to  the  successful  appellant  are  $10  and  disburse- 
ments, as  on  appeal  from  an  order  of  the  Supreme  Court,  and  not  the 
$30,  as  on  appeal  from  a  judgment  of  the  Municipal  Court,  provided 
for  in  Code  Civ.  Proc,  §  3067.  Strassner  v.  Thompson,  40  App.  Div. 
28,  57  N.  Y.  Supp.  546.  See  also  Sandoioitz  v.  Duane,  30  Misc.  Rep. 
630,  62  X.  V.  Supp.  744. 

Printing  brief. —  Disbursements  for  printing  a  brief  on  an  appeal 
from  this  court  not  taxable.     Mayer  v.  Friedman,  30  Misc.  Rep.  364. 

§  347.  Fees  payable  to  clerks. —  There  shall  be  paid  to  the 
clerks  of  the  court,  the  following  sums  as  court  fees  in  an 
action,  and  there  shall  be  no  others. 

1.  Upon  the  issuing  of  a  summons,  one  dollar. 

2.  For  placing  cause  upon  the  calendar  of  court,  one  dol- 
lar, to  be  paid  upon  the  return  of  the  summons. 

3.  For  a  return  upon  an  appeal  from  a  judgment  or  order, 
two  dollars. 

4.  For  issuing  an  order  of  arrest,  or  a  warrant  of  attach- 
ment, one  dollar. 

5.  For  entry  of  judgment  upon  confession,  one  dollar. 

C.  For  trial  by  jury  of  six,  four  dollars  and  fifty  cents; 
for  trial  by  jury  of  twelve,  nine  dollars. 

7.  For  certifying  a  copy  of  a  paper  on  file  in  the  clerk's 
office,  ten  cents  for  each  folio  of  one  hundred  words,  except 
return  upon  appeal. 

All  of  the  above  fees  shall  be  prepaid  before  the  service 
shall  be  performed. 

Notes  to  section  347. 

This  section  supersedes  sections  1416  and  1417  of  the  Consolidation 
Act  (Laws  1882,  chap.  410),  which  were  taken  from  Laws  1857,  chap. 
344,  §§  67  and  68,  except  as  to  section  1416,  the  amendment  of  Laws 
1887,  chap.  307,  and  the  repeal  of  subdivision  3,  Laws  1886,  chap.  678, 
and  as  to  section  1417,  the  amendment  of  Laws  1868,  chap.  308.  Sec- 
tion 1417  is  also  taken  from  Laws  1857,  chap.  295,  §§  7  and  8,  Laws 
1874,  chap.  741,  §  4. 

The  last  sentence  is  taken  from  section  3281  of  the  Code  of  Civil 
Procedure.  Section  1429  of  the  Consolidation  Act  was  a  similar  pro- 
vision. 

The  fees  are  now  the  same  whether  the  amount  demanded  in  the 
summons  is  less  or  over  $50,  and  this  distinction,  contained  in  sections 
1416  and  1417  of  the  Consolidation  Act,  has  been  abolished. 


§§  348,  349.  Costs  and  Fees.  453 

The  "  trial  fee  "  is  now  a  fee  of  $1  in  all  cases  for  placing  the  action 
on  the  calendar,  which  nullifies  the  decisions  in  Matter  of  Hale,  32 
Misc.  Rep.  104,  05  N.  Y.  Supp.  419;  Matter  of  Du  Bois,  30  Misc.  Rep. 
488,  and  there  is  now  no  longer  any  return   trial  fee  in  any  case. 

Clerks  are  to  have  no  fees  for  their  own  use.     See  §  347. 

Fire  commissioner. —  No  fees  or  costs  in  actions  to  recover  a  penalty. 
Charter,  S   773,  until  changed  by  the  board  of  aldermen. 

Poor  person  to  pay  jury  fees.     Section  40. 

Tabular  statement  of  fees. —  See  end  of  §  356. 

§  34S.  Employee's  action;  no  fees. —  When  the  action  is 
brought  by  an  employee  against  an  employer  for  services 
performed  by  such  employee,  male  or  female,  the  clerks  of 
this  court  shall  not  demand  or  receive  any  fees  whatsoever 
from  the  plaintiff  or  his  agents  or  attorneys  in  such  action, 
if  the  plaintiff  shall  present  proof  by  his  own  affidavit  that 
his  demand  is  less  than  fifty  dollars,  that  he  is  a  resident  of 
the  city  of  New  York,  that  he  has  a  good  and  meritorious 
cause  of  action  against  the  defendant,  and  the  nature  thereof; 
that  he  has  made  either  a  written  or  a  personal  demand  upon 
the  defendant  or  his  agent  or  representative,  for  payment 
thereof,  and  that  payment  was  refused.  Except  that  if  the 
plaintiff  shall  demand  a  trial  by  jury,  he  must  pay  to  the 
clerk  the  fees  therefor  prescribed  in  this  act. 

Notes  to  section  348. 

This  section  is  taken  from  section  1416  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  as  amended  by  Laws  1887,  chap.  309. 

The  jury  fee  is  $4.50.     See  §  44. 

See  also  tabulated  fees  at  the  end  of  §  356. 

Nurse. —  Where  services  are  rendered  by  a  woman  as  a  nurse  in  a 
family,  she  is  entitled  to  the  benefit  of  section  3221  of  the  Code  of 
Civil  Procedure,  section  1405  of  the  Consolidation  Act,  but  she  cannot 
have  $10  costs  under  sections  3222  (this  section)  and  3131  (relating 
to  a  justice  court  in  the  city  of  Brooklyn)  of  the  Code  of  Civil  Pro- 
cedure.    Dillon  v.  Porter,  12  Week.  Dig.  207. 

§  349.  Fees,  property  of  city. —  Except  marshals'  and 
jurors'  fees,  all  moneys  paid  to  the  clerks  of  this  court  for 
fees  shall  be  the  property  of  the  city  of  New  York. 

Note  to  section  349. 

This  section  is  new. 


454  Costs  a.m.   Fees.        §§350,351,352. 

§  350.  Fees  on  docket  of  judgment,  in  county  clerk's  office. — 
When  a  judgment  is  docketed  by  a  county  clerk  upon  a  tran- 
script from  a  clerk  of  this  court,  he  shall  add  to  the  amount 
of  the  judgment  set  forth  in  said  transcript,  a  charge  for 
docketing  judgment  in  said  office,  the  fee  of  the  county 
clerk  for  issuing  an  execution  and  the  sheriff's  fees  for  re- 
ceiving and  returning  one  execution  thereof. 

Notes  to  section  350. 

This  section  is  taken  from  section  1420  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  which  was  originally  Laws  1857,  chap.  344, 
§  70.     See  Laws  1853,  chap.  G17,  §§  3,  4. 

See  Costs.     Duty  of  clerk  on  taxation.     §  343. 

Tabulated  costs  and  fees. —  See  end  of  §  356. 

§  351.  Juror's  fees. —  Every  person  summoned  as  a  juror 
shall  he  entitled  to  a  fee  of  twenty-five  cents,  to  be  paid  as 
provided  in  this  act. 

Note  to  section  351. 

See  also  sections  231  and  235,  "  Trial  by  jury,"  etc. 

§352.  Witnesses'  fees. —  A  witness  in  an  action  or  sum- 
mary proceeding,  pending  in  this  court,  or  before  a  commis- 
sioner appointed  by  this  court,  or  before  a  justice  of  this 
court,  taking  a  deposition  to  be  used  in  a  court  not  of  rec- 
ord of  another  state  or  territory  of  the  United  States  is 
entitled,  except  where  another  fee  is  specially  prescribed  by 
law,  to  twenty-five  cents  for  each  day's  attendance;  and  if 
he  resides  more  than  three  miles  from  the  place  of  attend- 
ance, to  eight  cents  for  each  mile  going  to  the  place  of 
attendance. 

Notes  to  section  352. 

This  section  is  taken  from  sections  3327  and  3318  of  the  Code  of 
Civil   Procedure,  relating  to  justices'  courts. 

See  also  section  197,  "  How  subpoena  served,**  and  section  199,  "  How 
executed ;  fees  thereupon." 

Expert. —  An  expert  witness  is  not  bound  to  testify  without  compen- 
sation (People  v.  Montgomery,  13  Abb.  N.  S.  207),  but  he  cannot  get 
any  expenses  other  than  legal  fees.     Fuller  v.  Mattice,  14  Johns.  357. 


§  353.  Costs  and  Fees.  455 

And  he  cannot  recover  his  fees  from  the  justice;  his  remedy  is  against 
the  party  calling  him.  Andrews  v.  Bates,  5  Johns.  351;  Watts  v.  Van 
Ness,  1  Hill,  70. 

Disbursements  for  the  services  of  expert  witnesses,  above  the  witness 
fees  fixed  by  statute,  cannot  be  taxed  in  the  District  Courts.  Randall 
v.  Morning  Journal  Assn.,  22  Misc.  Rep.  715,  49  N.  Y.  Supp.  1064. 

Parties,  attorneys,  etc.;  when  not  allowed  fees. —  A  party  to  an 
action  or  a  special  proceeding  is  not  entitled  to  a  fee,  for  attending  as 
a  witness  therein,  in  his  own  behalf,  or  in  behalf  of  a  party  who  pleads 
jointly,  or  is  united  in  interest  with  him;  and  an  attorney  or  counsel, 
in  an  action  or  a  special  proceeding,  is  not  entitled  to  a  fee  for  attending 
as  a  witness  therein,  in  behalf  of  his  client.    Code  Civ.  Proc,  §  3288. 

Settlement  of  the  suit  or  a  postponement  discharges  the  witness's 
liability  to  attend  court,  and  does  not  impair  his  right  to  retain  the 
money  paid  to  him.     Ford  v.  Monroe,  6  How.  Pr.  206. 

§  353.  Stenographer's  fees. —  In  all  cases  of  appeal  from 
an  order  or  judgment  made  or  rendered  in  this  court,  where 
a  transcript  of  the  stenographer's  minutes  of  the  testimony 
given  on  the  trial  of*  hearing,  becomes  a  necessary  part  of 
the  return  on  appeal,  the  stenographer's  fees  for  making 
up  such  transcript  shall  be  ten  cents  for  every  one  hundred 
words,  and  shall  be  paid  in  the  first  instance  by  the  appel- 
lant, and  afterwards  taxable  by  him  as  a  disbursement  on 
the  appeal. 

Notes  to  section  353. 

This  section  is  taken  from  section  1367,  subdivision  2  of  the  Charter 
(Laws  1897,  chap.  378),  which  was  formerly  section  1439  of  the  Con- 
solidation Act,  and  the  same  as  Laws  1874,  chap.  504,  §   1. 

The  change  is  on  the  increase  to  double  the  fees,  from  five  to  ten 
cents  for  every  one  hundred  words,  the  same  as  is  paid  in  courts  of 
record. 

Contempt. —  A  stenographer  will  be  punished  for  contempt  for 
wrongfully  refusing  to  deliver  a  copy  of  his  minutes  unless  paid  in 
excess  of  the  statutory  rate.      Cavanagh  v.  O'Neill,  20  Misc.  Rep.  233. 

Justice;  no  copy  minutes  for. —  There  is  no  provision  of  law  justify- 
ing a  direction  to  the  plaintiff  to  furnish  the  justice  with  a  copy  of  the 
stenographer's  minutes  and  include  the  expense  in  the  costs  as  part  of 
a  judgment  rendered  in  plaintiff's  favor.  Cohen  v.  Weill,  32  Misc.  Rep. 
198,  65  X.  Y.  Supp.  695. 

Minutes  of. —  Must  be  furnished  clerk  within  ten  days  after  the  fees 
therefor  have  been  paid.     See  §  317. 

*  So  in  original. 


456  Costs  and  Fees.  §  354. 

§  354.  Marshal's  fees. —  Fees  shall  be  allowed  to  marshals 
for  services  rendered  under  the  provisions  of  this  act,  as 
follows:  For  serving  a  summons,  order  of  arrest,  or  attach- 
ment on  one  defendant,  one  dollar,  and  for  every  additional 
defendant  actually  served,  fifty  cents;  for  a  copy  of  every 
summons  delivered  on  request,  or  served,  fifteen  cents;  for 
a  copy  of  every  attachment  and  of  the  inventory  of  the  prop- 
erty attached,  fifty  cents;  for  serving  and  levying  an  exe- 
cution or  selling  under  an  attachment,  five  cents  for  every 
dollar  collected  to  the  amount  of  one  hundred  dollars,  and 
two  and  a  half  cents  for  every  dollar  collected  over  one  hun- 
dred dollars;  for  every  mile,  going  only,  more  than  one  mile, 
when  serving  a  summons,  order  of  arrest,  attachment  or  exe- 
cution, six  cents,  to  be  computed  from  the  place  of  abode 
of  the  defendant,  or  where  he  shall  be  found,  to  the  place 
where  the  same  is  returnable;  for  summoning  a  jury,  one 
dollar  and  fifty  cents;  for  going  with  the  plaintiff  or  defend- 
ant to  secure  security,  when  security  is  ordered  by  the  court, 
one  dollar;  for  taking  the  defendant  into  custody  on  an  order 
of  arrest,  execution,  or  commitment,  two  dollars  and  forty 
cents,  serving  a  subpa?na,  twenty-five  cents;  for  every  levy 
actually  made  by  virtue  of  an  execution,  one  dollar;  for 
serving  a  writ  of  possession  or  restitution,  putting  any  per- 
son entitled  into  the  possession  of  premises,  and  removing 
the  tenant,  when  such  powers  can  be  exercised  by  a  marshal, 
one  dollar;  and  the  same  fees  for  traveling  to  serve  the  same 
as  are  herein  allowed  for  serving  a  summons;  for  advertis- 
ing for  sale  any  property  by  virtue  of  any  execution  or  at- 
tachment issued  out  of  a  district  court,  or  by  any  justice 
thereof,  one  dollar;  for  every  day  necessarily  employed  in 
attending  such  sale,  one  dollar.  The  said  marshals  shall 
perform  all  other  services  required  of  them  by  law,  without 
any  fees  or  compensation  whatever  therefor,  and  no  other 
fees,  charges,  or  compensation  shall  be  allowed  to,  demanded, 
or  charged  by  any  of  the  said  marshals. 

Notes  to  section  354. 

This  section  is  section  1710  of  the  Consolidation  Act  (Laws  1882, 
chap.  410),  unchanged.     Obviously  it  should  have  been  changed.     The 


§  355.  Costs  and  Fees.  457 

marshal  is  allowed  one  dollar  for  going  with  plaintiff  or  defendant  "  to 
secure  security,  when  security"  is  ordered  by  the  court,  and  for  ad- 
vertising for  sale  any  property  by  virtue  of  any  execution  or  attach- 
ment issued  out  of  "  a  District  Court,  or  by  any  justice  thereof,"  one  dol- 
lar. The  "  District  Courts  "  have  been  abolished  since  January  1,  1898 
(see  §  1351,  Charter)  ;  there  is  only  one  court  now,  and  "the  court" 
and  not  the  justice,  grants  or  issues  the  warrant.     See  §  75. 

There  is  no  provision  made  for  the  service  of  a  complaint  with  the 
summons  by  the  marshal.  Under  section  1419  of  the  Consolidation  Act 
marshals  were  allowed  twenty-five  cents  for  every  copy  of  complaint 
served,  in  addition  to  the  $1  for  serving  the  summons.  This  provision 
has  been  omitted. 

Prior  to  section  1710  of  the  Consolidation  Act  (Laws  1882,  chap. 
410),  Laws  1862,  chap.  484,  §  15,  as  amended  by  Laws  1864,  chap.  569, 
§  3,  regulated  the  fees  of  marshals. 

Defaulting  witness. —  Fees  on  warrant  of  attachment  against.  See 
§§  198,  199. 

Bargains. —  Any  bargain  between  a  plaintiff  in  an  execution  and  the 
officer  holding  it,  for  payment  of  a  compensation  beyond  that  allowed 
by  law  for  the  collection,  is  void.  Downs  v.  M'Glynn,  2  Hilt.  14,  6  Abb. 
Pr.  241. 

Jury  notice  to  be  served  by  marshal.     See  §  231. 

Keeper's  fees. —  The  fees  of  a  keeper  for  services  not  being  fixed  or 
allowed  by  law,  an  agreement  to  pay  such  fees,  if  not  illegally  extorted, 
is  valid  in  law.     Maguin  v.  Rosenthal,  62  How.  504. 

No  other  fees,  charges,  or  compensation  shall  be  allowed  to,  de- 
manded, or  charged  by  any  of  the  said  marshals.     See  end  of  §  354. 

Tabulated  statement  of  marshal's  fees. —  See  end  of  §  356. 

Talesmen  notice   to  be  served  by  marshal.     See  §  236. 

§  355.  Costs  on  order  to  prosecute  marshal's  bond. —  When- 
ever an  order  shall  be  made  pursuant  to  law,  directing  that 
the  bond  of  a  marshal  be  prosecuted  in  this  court,  the  justice 
granting  the  motion  and  making  the  said  order  may  award 
the  aggrieved  party  his  reasonable  costs  on  said  motion,  not 
exceeding  the  sum  of  ten  dollars,  which  shall  be  included  in 
the  judgment  obtained  upon  such  bond. 

Note  to  section  355. 

This  section  is  the  same  as  section  1425  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  which  was  taken  from  Laws  1862,  chap.  484, 
§  7. 


458  Costs  am)  Fees.  §356. 

§356.  Fees  in  summary  proceedings. —  In  summary  pro- 
ceedings to  recover  the  possession  of  lands,  the  fees  of  offi- 
cers, except  where  a  fee  is  specially  given  in  chapter  twenty- 
one  of  the  code  of  civil  procedure,  must  be  at  the  rate  al- 
lowed by  law,  in  an  action  in  this  court,  and  are  limited  in 
like  manner,  unless  the  application  is  founded  upon  an  alle- 
gation of  forcible  entry  or  forcible  holding  out;  in  which 
case  the  judge  or  justice  may  award  to  the  successful  party 
a  fixed  sum  as  costs,  not  exceeding  fifty  dollars,  in  addition 
to  his  disbursements.  The  final  order  awarding  costs  may 
be  docketed,  and  an  execution  may  be  issued  to  collect  the 
costs  awarded  thereby  in  like  manner  as  if  the  final  order 
was  a  judgment  rendered  in  the  court  in  which  the  judge  or 
justice  is  presiding  officer. 

Notes  to  section  356. 

This  section  is  the  same  as  section  1418  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  with  the  exception  tha"t  the  words,  "in  this 
court"  are  suhstituted  for  "in  said  courts,"  and  the  word  "justice" 
is  added  in  the  last  line. 

See  also  §  354,  "  Marshal's  fees,"  and  note  to  §   1,  subd.   12. 

Note. —  There  are  no  sections  from  356  to  360. 

TABULATED   STATEMENT   OF  COSTS  AKD  FEES. 

Costs;   adjournment. —  In  discretion  of  the  justice,  besides  dis- 
bursements      $10  00 

(See   §   336.) 
Id.;    amending,  modifying,  or   setting  aside  judgment. —  Costs 

in  discretion  of  the  court.     (See  §  256.) 
Id.;   amendment  of  pleading. —  In  the  discretion  of  the  court, 

not  to  exceed   10  00 

(See   §   335.) 

Id.;    appeal. —  To  the  appellant  upon  reversal 30  00 

(See  §  346.) 

Id. — To  the  respondent  upon  affirmance 25  00 

(See  §  346.) 

Id. —  Stipulation  that   judgment  be  reversed 5  00 

(See  §  325.) 
Id.;    bastardy   and    abandonment   bonds. —  In   addition   to    the 
other  costs   therein,  court   shall  make  and  clerk  enter  in 
the  judgment  an  additional  allowance  of  10  per  centum  of 
the  judgment.     (See  §   339.) 


Tabulated  Statement  of  Costs  and  Fees.       451) 

Id.;  building  department. — •  Xot  liable  for  costs  unless  specially 
ordered.     (See   §   151.) 

Id.;    default,   opening. —  Court   may   award   not  exceeding  $10. 
(See  §  256.) 

Id.;  defendant;  nonappearance  of  plaintiff. —  The  same  'as  pre- 
scribed in  section  332,  subdivision  3,  based  upon  plaintiff's 
demand. 

In  action  to  recover  a  chattel  the  'amount  is  governed  by  the 
value  thereof  as  set  forth  in  plaintiff's  'affidavit.  (§  332, 
subd.  0.) 

Id.;   id.;   counterclaim. —  For  $50  and  under  $100 $5  00 

For  $100  and  under  $200    7  50 

For  $200  and  under  $300    10  00 

For  $300  and  under  $400   12  50 

For  $400  or  over    15  00 

(§  332,  subd.  8.) 

Id.;  id. —  After  trial  of  issue  of  fact  the  same  as  prescribed  in 
section  332,  subdivision  2,  based  upon  the  amount  of  plain- 
tiff's demand.      (§  332,  subd.  5.) 

In  action  to  recover  a  chattel  the  'amount  is  governed  by  the 
value  thereof  as  set  forth  in  plaintiff's  affidavit.  (§  332, 
subd.  5.) 

Id.;  id.;  counterclaim. —  After  trial  of  issues  of  fact.     For  $50 

and  under  $100   10  00 

For  $100  and  under  $200    15  00 

For  $200  and  under  $300   20  00 

For  $300  and  under  $400    25  00 

For  $400   or   over,    ". 30  00 

(§  332,  subd.  7.) 

Id.;  id.;  increased. —  Upon  final  judgment  in  action  for  recov- 
ery of  money  only,  a  chattel  or  final  order  in  a  special 
proceeding,  instituted  by  a  State  writ,  the  same  costs  as 
prescribed  in  section  332,  and  in  addition  thereto,  one-half 
thereof.     (See  §  333.) 

Id.;  demurrer.— Where  judgment  rendered  on  trial,  same  costs 
as  if  judgment    upon  default  in  the  action.     (See  §  334.) 

As  a  condition  to  plead  over,  in  the  discretion  of  the  justice, 

not   to   exceed    10  00 

(See   §   334.) 

Id.;  discontinuance  upon  answer  of  title. —  Party  in  whose 
favor  final  judgment  is  obtained  in  new  action  is  entitled 
to  costs ;  except  where  final  judgment  is  rendered  in  favor 
of  defendant,  upon  trial  of  issue  of  fact,  unless  it  is  certi- 
fied that  title  to  real  property  came  in  question  on  the 
trial.     (See  §  337.) 


4G0       Tabulated  Statement  of  Costs  and  Fees. 

Id.;  either  party. — Where  amount  demanded  is  under  $.50,  or 
where,  in  addition  thereto,  defendant  interposes  a  counter- 
claim  under  $50,  the  court   may,   in   its  discretion,   award 

not  exceeding    $5  00 

(§  332,  subd.   1.) 

Id.;  forcible  entry  or  forcible  holding  out. —  In  addition  to  dis- 
bursements  to   successful   party    50  00 

(See  §  35G.) 

Id.;   health  department. —  Recovery  for  less  than  $50,  etc 10  00 

(See  Charter,  §§  1262,  1267.) 

Id.;  neither  party  to  recover. —  (See  §  331.) 

Id.;  plaintiff;  nonappearance  or  failure  of  defendant  to  answer. 

For  $50  and  under  $100 5  00 

For  $100  and  under  $200    7   50 

For  $200  and  under  $300    10  00 

For  $300  and  under  $400   12  50 

For  $400  or  over    15  00 

(§  332,  subd.  3.) 

In  action  to  recover  a  chattel  the  amount  is  governed  by  the 
value  of  the  chattel  as  determined  in  the  judgment.  (§  332, 
subd.  3.) 

Id.;  id.— After  trial  of  issue  of  fact.     For  $50  and  under  $100,       10  00 

For  $100  and  under  $200    15  00 

For  $200  and  under  $300  20  00 

For  $300  and  under  $400    25  00 

For  $400  or  over    30  00 

(§  322,  subd.  2.) 

In  action  to  recover  a  chattel  the  amount  is  governed  by  the 
value  of  the  chattel  as  determined  in  the  judgment.  (§  332, 
subd.  2.) 

Id.;  id.;  against  counterclaim. — Where  the  action  is  for  less 
than  $50,  and  defendant  interposes  <a  counterclaim  for  $50 
or  over,  and  plaintiff  recovers  judgment  upon  the  non- 
appearance of  defendant,  the  same  sum  as  plaintiff  would 
be  entitled  to  recover  on  default  if  the  amount  of  his  claim 
was  the  amount  of  defendant's  counterclaim.  (§  332, 
subd.  4.) 
Id.;  settlement  before  trial  the  same  as  in  section  332,  sub- 
division 3,  determined  by  the  amount  of  settlement.  (See 
§  332,  subd.  9.) 
Id.;  id. — After  trial,  and  before  entry  of  judgment,  same  as 
section  332,  subdivision  2,  determined  by  the  amount  of 
settlement. 

/ 


Tabulated  Statement  of  Costs  and  Fees.       461 

Id.;  poor  person. — Where  costs  awarded,  must  be  paid  to  at- 
torney, when  collected  from  adverse  party,  and  distributed 
among    the   attorneys    and   counsel,   as   the   court    directs. 
(See   §   50.) 

Id.;  removal  of  action  to  City  Court  the  same  costs  as  if  the 
action  had  been  commenced  in  that  court.     (§  332.) 

Id.;  stipulation  on  appeal  that  judgment  be  reversed $5  00 

(§   325. 

Id.;  title  to  real  property,  answer  of. —  See  "Discontinuance," 
and   §    337.) 

Id.;  id. — Where  complaint  dismissed  pursuant  to  section  184 
defendant  entitled  to  same  costs  as  in  subdivision  2  of 
section  332.     (See  §   338.) 

Id.;  vacating,  amending,  modifying,  or  setting  aside  judgment, 
in  court's  discretion.     (See  §  256.) 

Id.;  working-woman. —  In  addition  to  the  costs  allowed  in  this 

court,  where  judgment  is  less  than  $10   5  00 

Over  $10   10  00 

Upon  a  settlement,  full  costs  on  sum  received  on  settlement. 
(See  §  340.) 

CLERK'S  FEES. 

Adjournment  granted  after  return  of  jury,  clerk  must  receive 

either    $4  50  or  $9  00 

(See  §§  238,  231,  and  234.) 

Appeal  from  judgment  or  order,  return  on  (§  347) 2  00 

Arrest,  issuing  order  of   ( §  347 ) 1  00 

Attachment,  issuing  warrant  of   ( §   347 ) 1  00 

Calendar,  placing  action  on  (§  347)    1  00 

Certifying  copy  paper  on  file,  except  return  on  appeal,  for  each 

folio  "  of  one  hundred  words  "  (§  347,  subd.  7) 10 

Certificate  to  commissioner  of  jurors  of  fine  imposed  by  judge 
on  juror  failing  to  attend.     Failure  to  transmit,  for  each 

offense   (§  233)    150  00 

City  clerk,  for  filing  transcript  of  judgment  against  a  marshal 

in  his  office   (§  295)    %...  50 

City  of  New  York,  or  any  department,  board,  or  officer  thereof 

not  to  pay  any  fees.     (§  29.) 
Id. — All  moneys  paid  to  the  clerk,  except  marshals'  and  jurors' 

fees,  shall  be  the  property  of.     (§  349.) 
Clerk  to  account   for  and  pay  all  fees  into  the  city  treasury 
(§   283),   and  all  fees   paid  to  him,  except  marshals'  and 
jurors'  fees  shall  be  the  property  of  the  city  of  New  York. 
(§  349.) 
Confession,  judgment  on  ( §  347 )    1  00 


462       Tabulated  Statement  of  Costs  and  Fees. 

Corporation  counsel  to  pay  no  fees  in  actions  by  the  city  of 
Now  York.     (§   29.) 

Docketing  judgment  upon  transcript  from  clerk  of  this  court. 
(See  §§  350,  3304  and  3307,  Code  Civ.  Proc.) 

Employee's    action. —  Male   or   female.     Summons    to   be    free. 
(§   44.) 
Clerk    shall   not   demand   or    receive    any    fees    whatsoever 

(§  348),  except  a  jury  trial  of  six  is  demanded    (§44),       $4  50 
And  for  a  jury  of  twelve  ( §  234)    9  00 

Execution. —  Issuing  and  sheriff's  fees  for  receiving  and  re- 
turning.    (§§  350,  3304    and  3307,  Code  Civ.  Proc.) 

Fees  paid  to  the  clerk  to  be  property  of  the  city  of  New  York, 
except  marshals'  and  jurors'  fees.     (§   349.) 

Judgment  on  confession  ( §  347) 1  00 

Id. —  Docketing,  upon  transcript  from  clerk  of  this  court.  (See 
§§   3304  and  3307.) 

Jurors  and  jury  fees. —  See  tabulated  statement  of  same,  post. 

Poor  person  may  prosecute  without  paying  any  fees  to  any 
officer.  Code  of  Civil  Procedure,  section  461,  made  appli- 
cable by  section  3347,  subdivision  3,  of  said  Code.  (See 
notes  to  §  45.) 

Return  on  appeal  from  judgment  or  order  (§  347,  subd.  3) .  . . .         2  00 

Summary  proceedings. —  (See  §.  356.) 

Summons,  issuing   ( §   347 )    1  00 

Id. —  Employee's  action,  male  or  female,  summons  to  be  free. 
(§   348.) 

Id. —  City  of  New  Y'ork,  or  any  department,  board,  or  officer 
thereof  not  to  pay  any  fees.     (§  29.) 

Id. —  Serving,  by  corporation  counsel,  entitled  to  fees.     (§  302.) 

Id. —  No  fee  to  any  person  other  than  a  marshal,  for  serving. 
(§  302.) 

Warrant  of  attachment,  issuing   (§  347) 1  00 

JUROR'S  AXD  JURY  FEES. 

Juror  failing  to  attend,  fined  (§  233)    $25  00 

Clerk  fffiling  to  transmit  to  commissioner  of  jurors  certifi- 
cate of  fine  imposed,  for  each  offense  (§  233)    150  00 

Id.—  For  summoning  (§§  351  and  235)    25 

Jury  trial,  of  six  (§§  44,  231,  347)    4  50 

Id.,  of  twelve   (§§  234,  347)    9  00 

Id.;   poor  person. —  (See  notes  to  §  45.) 

Id.;  adjournment  granted  after  return  of  jury,  clerk  must  re- 
ceive either   $4  50  or  9  00 

(§§  238,  231,  234.) 


Tabulated  Statement  of  Costs  and  Fees.       463 

Id.;   employee,  summons  free;   if  he  demands  jury  trial  must 

pay   $4  50  or  $9  00 

(§§  44  and  348.) 
Id. —  Fee  can  only  be  taxed  or  included  in  the  judgment  once. 

(§  238.) 
Stenographer. —  For  making  up  transcript  of  minutes  of  testi- 
mony, for  every  100  words   (§  353)    10 

WITNESS'  FEES. 

Attendance  each  day  (§§  197  and  352)    25 

Defaulting  witness  or  party  procuring  warrant  to  pay  fees  of 

marshal.     (§§    199,   198.) 
Mileage  from  his  residence,  more  than  three  miles  to  place  of 

attendance  for  each  going  to  such  place   (§  352  and  197),  08 

Neglect  or  refusal  to  obey  subpoena,  all  damages  which  party 

sustains   and   fine   or   imprisonment   under  section    8    (see 

§200)    50  00 

MARSHAL'S  FEES,  ETC. 

Section  354. —  Serving  summons,  order  of  arrest,  or  attachment 

on   one   defendant    $1  00 

For  every  additional  defendant  actually  served   50 

Copy  of  every  summons  delivered  on  request,  or  served  ...  15 

Copy   of   every  (attachment  and   of   inventory   of  property 

attached 50 

Serving  and  levying  an  execution,  or  selling  under  an  at- 
tachment,  for   every  dollar   collected  to   the  amount   of 

$100   05 

Over  $100    02*4 

For  every  mile,  going  only,  more  than  one  mile,  when  serv- 
ing a  summons,  order  of  arrest,  attachment,  or  execution, 
to   be   computed  from  place   of   abode   of  defendant,   or 

where  found,  to  the  place  where  same  is  returnable 06 

Summoning  jury   (see  also  §  231)    1  50 

Going  with  pkuntiff  or  defendant  to  "  secure  security,  when 

security  "  ordered  by  the  court   1  00 

Taking  defendant  into  custody  on  order  of  arrest,  execu- 
tion, or  commitment    2  40 

Serving    subpoena    25 

Levy  actually  made  on  execution   1  00 

Serving  writ  of  possession,  or  restitution,  putting  person  in 
possession  of  premises  and  removing  tenant,  when  such 
powers  can  be  exercised  by  marshal 1  00 


464  Definitions  ;  Effect  of  Act,  Etc. 

Section  354  —  Continued. 

Same  fees  for  traveling  to  serve  the  same  as  allowed   for 

serving  summons. 
Advertising  for  sale  any  property  by  virtue  of  an  execu- 
tion  or   attachment   issued   out   of   this   court,   or  by   a 

justice    thereof    ,.  .  .  .        $1  00 

Every  day  necessarily  employed  attending  such  sale   1  00 

To  perform  all  other  services  required  by  law,  without  fee 
or  compensation,  and  no  other  fees,  charges,  or  com- 
pensation are  allowed  to,  demanded  by,  or  chargeable. 

Section  104. —  Fees  and  expenses  for  keeping  property  replevied 
to  be  taxed  by  the  court. 

Section  302. —  Xo  fee  to  any  person  other  than  ia  marshal  for 
serving  process. 

Section  355. —  On  order  to  prosecute  bond,  may  award  ag- 
grieved party  costs,  to  be  included  in  the  judgment  obtained 
upon  such  bond,  not  exceeding   10  00 

Section  199. —  Serving  warrant  of  attachment  on  defaulting 
witness,  fees  to  be  paid  by  person  against  whom  issued, 
unless  reasonable  excuse  shown  to  satisfaction  of  court, 
in  which  case,  party  procuring  warrant  must  pay  them, 
and  if  he  recovers  costs,  the  amount  must  be  allowed  to 
him   as  part  thereof.   " 

Section  303. —  May  serve  process  and  mandates  of  this  court, 
in  any  part  of  the  city  of  New  York. 

Note.—  There  are  no  sections  from  356  to  360. 
TITLE    XI. 

Definitions;  effect  of  act;  laws  repealed. 

Section  360.  Definitions. 

361.  Saving  clause. 

362.  Construction. 

363.  Sections  of  the  Code  not  applicable. 

364.  Laws  repealed. 

365.  Act  may  be  cited. 

366.  When  to  take  effect. 
Schedule   of   laws   repealed. 

Table  showing  disposition  of  laws  repealed. 

Note  to  title  XI. 

At  the  end  of  schedule  of  laws  repealed  and  preceding  "  Table  Show- 
ing Disposition  of  Laws  Repealed,"  the  following  note  appears:  "  (This 
table  to  be  eliminated  from  act  as  an  explanation. ) "  See  notes  to 
"  Notes  to  Table  Showing  Disposition  of  Laws  Repealed,"  post. 


§§  360,  361.     Definitions;  Effect  of  Act,  Etc.         465 

§  360.  Definitions — Words  used  in  this  act  in  the  past  or 
present  tense  include  the  future  as  well  as  the  past  or  pres- 
ent; words  used  in  the  masculine  gender  include  the  feminine 
and  neuter;  the  singular  number  includes  the  plural  and  the 
plural  the  singular;  the  word  "  person"  includes  a  corpora- 
tion as  well  as  a  natural  person;  writing  includes  printing, 
printed  or  typewritten  matter;  "  oath  "  includes  affirmation 
or  declaration;  "  signature  "  or  "  subscription  "  includes 
"  mark,"  when  the  person  cannot  write,  his  name  being  writ- 
ten near  it.  The  following  terms  also  named  in  this  act 
have  the  signification  attached  to  them  in  this  section,  un- 
less otherwise  apparent  from  the  context : 

1.  The  word  "  attorney  "  signifies  an  attorney  of  the  su- 
preme court  of  this  state,  duly  licensed  to  practice  as  such. 

2.  The  word  "  district  "  signifies  a  district  of  the  municipal 
court. 

3.  The  word  "  clerk  "  signifies  the  clerk  or  assistant  clerk. 

4.  The  word  "  marshal  "  signifies  any  person  authorized 
to  perform  the  duties  of  a  marshal. 

5.  The  word  "  corporation "  includes  every  association 
having  any  corporate  rights,  whether  created  by  special  acts 
of  the  legislature  or  under  general  laws. 

Note  to  section  360. 

This  section  is  taken  from  section  1437  of  the  Consolidation  Act 
(Laws  1882,  chap.  410),  which  was  the  same  as  section  80,  chapter  344, 
Laws  1857. 

§  361.  Saving  clause. — The  repeal  of  a  law  or  any  part  of 
it  specified  in  the  annexed  schedule,  shall  not  affect  or  im- 
pair any  act  done  or  right  accruing,  accrued  or  acquired,  or 
liability,  forfeiture  or  penalty  incurred  prior  to  September 
first,  nineteen  hundred  and  two,  under  or  by  virtue  of  any 
law  so  repealed,  but  the  same  may  be  asserted,  enforced, 
prosecuted  or  inflicted,  as  fully  and  to  the  same  extent  as 
if  such  law  had  not  been  repealed;  nor  shall  this  act  create 
a  vacancy  in  any  office  or  employment.  All  actions  and 
proceedings  commenced  under  or  by  virtue  of  the  laws  so 
repealed  and  pending  on  September  first,  nineteen  hundred 
30  ^ 


466        Definitions;  Effect  of  Act,  Etc.     §§362,363. 

and  two,  may  be  prosecuted  in  the  same  manner  and  with 
the  same  effect  as  they  might  under  laws  then  existing,  un- 
less it  shall  be  otherwise  specially  provided.  Nothing  in  this 
act  contained,  shall  be  construed  as  affecting  any  existing 
provision  of  law  so  far  as  provisions  apply  to  any  portion 
of  the  state,  other  than  the  city  of  New  York. 

Note  to  section  361. 

The  commissioners  on  revision  say  of  this  section:  "The  foregoing 
is  an  adaptation  from  section  2143  of  the  Consolidation  Act,  and  sec- 
tion G30  of  the  Provisional  Justices'  Code  of  1899,  as  a  saving  clause." 

§  362.  Construction. —  The  provisions  of  this  act,  so  far 
as  they  are  substantially  the  same  as  those  of  laws  existing 
prior  to  September  first,  nineteen  hundred  and  two,  shall 
be  construed  as  a  continuation  of  such  laws,  modified  or 
amended,  according  to  the  language  employed  in  this  act, 
and  not  as  a  new  enactment ;  a  reference  in  laws  not  repealed, 
to  provisions  of  law  incorporated  into  this  act  and  repealed, 
shall  be  construed  as  applying  to  the  provisions  so  incor- 
porated. Where,  in  the  charter,  as  amended  in  nineteen 
hundred  and  one,  the  term  "  hereinafter  prescribed "  or 
words  equivalent  thereto  are  used  in  sections  relating  to  the 
municipal  court,  which  are  unrepealed,  the  reference  shall 
be  deemed  to  extend  to  this  act. 

Notes  to  section  362. 

The  commissioners  on  revision  say  of  this  section:  "The  foregoing 
is  taken  from  section  631  of  the  Provisional  Justices'  Code,  of  1899,  as 
a  rule  of  construction,  and  with  necessary  additions." 

When  earlier  law  repealed. —  When  a  section  of  a  prior  act  has  been 
omitted,  and  provisions  upon  the  same  subject,  somewhat  dissimilar, 
are  contained  in  the  Consolidation  Act,  the  earlier  act  is  repealed.  Mat- 
ter of  N.  Y.  Inst,  for  Deaf  and  Dumb,  121  N.  Y.  234;  s.  c,  25  Abb.  N.  C. 
31,  with  note. 

§  363.  Sections  of  the  code  not  applicable. —  The  provisions 
of  sections  thirty-two  hundred  and  seven  to  thirty-two  hun- 
dred and  fourteen,  inclusive,  of  the  code  of  civil  procedure, 
do  not  apply  to  actions  or  proceedings  in  this  court,  except 
as  specially  provided  in  this  act. 


§§  364,  365,  366.  Definitions;  Effect  of  Act,  Etc.  467 

Note  to  section  363. 

The  sections  above  mentioned  relate  to  the  District  Courts  of  the 
city  of  New  York,  and  to  the  justices'  courts  of  the  cities  of  Albany 
and  Troy.  While  this  court  is  a  continuation,  consolidation,  and  re- 
organization of  the  District  Courts  (Worthington  v.  London,  (i.  cG  A. 
Co.,  164  N.  Y.  81,  and  notes  to  Charter,  §  1351),  sections  3207  to  3214 
of  the  Code  of  Civil  Procedure  have  become  obsolete,  and  superseded  by 
other  laws,  and  they  have  been  left  in  force  only  as  to  the  justices' 
courts  in  Albany  and  Troy. 

§  364.  Laws  repealed. —  The  laws  or  parts  thereof,  speci- 
fied in  the  schedule  hereto  annexed  and  all  acts  amendatory 
thereof  or  supplemental  thereto,  in  force  when  this  act 
takes  effect,  are  hereby  repealed. 

Note  to  section  364. 

The  commissioners  on  revision  say  of  this  section :  "  The  foregoing 
section  is  taken  from  the  Provisional  Justices'  Code  of  1899  as  to  laws 
repealed." 

§  365.  Act  may  be  cited. —  This  act  may  be  cited  as  the 
municipal  court  act  of  the  city  of  New  York. 

§  366.  When  to  take  effect. —  This  act  shall  take  effect  on 
the  first  day  of  September,  nineteen  hundred  and  two. 


SCHEDULE  OF  LAWS  KEPEALED. 
Of,  "  The  Greater  New  York  charter,  as  enacted  in  1897  and 
amended  in  1901,"  the  following  sections : 

Laws  of  Chapter.  Section.  Subject-matter. 

1901.  .  .  .      466.  .  .  .      1364.  .  .  .      Jurisdiction  of  municipal 

court. 

1901 466 1365 Jurisdiction  limited. 

1901 466 1366 Removal  of  causes. 

1901 466 1367 Appeals. 

1901 466 1368 Process. 

1901 466 1369 Procedure. 

1901 466 1370 Actions  in  what  district 

brought. 


468 


Schedule  of   Laws    Repealed. 


Laws  of 

Chapter. 

Section 

1901. . . 

.      460... 

1371. 

1901... 

.      466... 

1372. 

1901... 

.      466... 

1374. 

1901... 

.      466... 

1375. 

1901... 

.      466... 

1376. 

1901... 

.      466... 

1377. 

1901... 

.      466... 

.      1379. 

1901. . . 

.      466... 

.      1380. 

1901... 

.      466... 

.      1384. 

1901... 

.      466... 

.      1428. 

1901.... 

.      466... 

1429. 

Subject-matter. 

Whore  court  hold. 
Seals,  etc. 
Board  of  justices. 
Board  to  make  rules. 
Concurrence  of  majority 

of  board. 
Rules  of   supreme   court 

applicable. 
Justice      to      administer 

oaths,  etc. 
Access  to  court  house. 
Summons    and    costs    in 

action  by  city. 
Powers,   duties  and  fees 

of  marshals. 
Removal  of  marshals. 


Notes  to  schedule  of  laws  repealed. 

Sections  1373,  1378,  and  1383  omitted  from  said  schedule  are  pre- 
served as  charter  amendments.  See  notes  to  title  VIII,  art.  I,  under 
the  contents,  head  of  section  282. 

Sections  1381,  1382  were  repealed  by  the  Charter  amendments  of  1901. 

Sections  1384  to  1424  are  not  a  part  of  the  Municipal  Court  Act. 

Sections  1424,  1425,  1426,  and  1427  are  preserved  as  Charter  enact- 
ments. See  note  under  title  VIII,  art.  II,  under  contents,  preceding 
Charter   section   1424. 


Of  "  The  New  York  city  consolidation  act,  of  eighteen  hun- 
dred and  eighty-two,"  as  amended  to  nineteen  hundred  and 
two,  the  following  sections: 

Section.  Subject-matter. 

1284.  .  .  .  Jurisdiction. 

1285 .  .  .  .  Jurisdiction  in  general. 

1286.  .  .  .  No  jurisdiction  in  certain  cases. 
1287 ....  Removal  of  actions  to  common  pleas. 

1288.  .  .  .      Former  jurisdiction  except  as  modified  by  code 

contained. 
1289 ....      Actions  in  what  district  brought. 
1290.  .  .  .      Actions  by  mayor,  etc. 


Schedule  of  Laws  Repealed. 


469 


Section.  Subject-matter. 

1291.  .  .  .  Court  where  and  when  held. 

1292.  .  .  .  Court,  by  whom  held,  etc. 
1293 Seals. 

1294.  .  .  .  Parties,  appearance  of. 

1295.  .  .  .  Guardian  ad  litem  for  infant. 

1296.  .  .  .  Action;  how  to  be  commenced. 

1297.  .  .  .  Summons;  requisites.. 
1298 Return. 

1299 Non-resident  plaintiff. 

1300.  .  .  .  Summons;  mode  of  service. 

1301 ...  .  Who  may  serve  summons. 

1302  ....  Warrants  of  attachment  to  be  served  by  marshal. 

1303.  .  .  .  Process  not  to  be  served  out  of  city. 

1304.  .  .  .  Arrest;  in  what  cases  to  be  granted. 
1305 ....  Affidavit  and  undertaking,  on. 

1306.  .  .  .  Arrests  to  enforce  game  laws. 

1307.  .  .  .  Order  of  arrest;  what  to  direct. 

1308.  .  .  .  Papers  delivered  to  arrested  person;  proceeding. 
1309 ....  Proceedings  when  justice  a  witness. 

1310.  ..  .  Plaintiff  to  be  notified  of  arrest. 

1311.  .  .  .  Bail  or  deposit  before  return. 

1312.  .  .  .  Bail  may  be  examined. 

1313.  .  .  .  Bail  or  deposit  after  return. 

1314.  .  .  .  When  and  how  defendant  to  remain  in  custody. 

1315.  .  .  .  Duty  of  marshal  in  arrest  proceedings. 

1316.  .  .  .  Attachment;  when  may  be  granted. 

1317.  .  .  .  What  to  be  shown  to  procure  attachment. 

1318.  .  .  .  Contents  of  warrant. 
1319 Undertaking. 

1320.  .  .  .  Plow  warrant  to  be  executed. 

1321.  .  .  .  Service  of  summons  and  warrant. 

1322.  .  .  .  Undertaking,  by  defendant,  in. 

1323.  .  .  .  Third  person  claim;  bond,  etc. 

1324.  .  .  .  Judgment  upon  bond. 

1325.  .  .  .  Action  on  undertaking  when  warrant  vacated. 

1326.  .  .  .  Return  by  marshal  attaching. 

1327.  .  .  .  Application  to  vacate  or  modify. 

1328.  .  .  .  Effect  of  vacating  warrant. 


470 


Sciikdule  of  Laws  Repealed. 


Section.  Subject-matter. 

1329.  .  .  .  Judgment  where  property  attached. 

1330.  .  .  .  Foreclosure  of  lien  on  chattel. 

1331.  .  .  .  Replevin;  when  action  can  be  brought. 

1332.  .  .  .  Affidavit  and  undertaking. 

1333.  .  .  .  Requisition  by  justice. 

1334.  .  .  .  How  requisition  executed. 

1335.  .  .  .  Return  to  requisition. 

1336.  .  .  .  Defendant  when  to  except  to  sureties;  proceed- 

ings thereon. 

1337.  .  .  .      Defendant  may  reclaim  chattel. 

1338.  .  .  .      Justification  of  sureties. 

1339.  .  .  .      When  and  to  whom  marshal  to  deliver  chattel. 

1340.  .  .  .      Penalty  for  wrong  delivery  by  marshal. 

1341.  .  .  .      Claim  of  title  by  third  person. 

1342 ....      Defendant  may  demand  judgment   for  return, 
etc. 

1343.  .  .  .      Actions  on  undertaking. 

1344.  .  .  .      Proceedings    where    summons    not    personally 

served. 
1345 ....      When  action  not  affected  by  failure  to  replevy. 

1346.  .  .  .      Pleading;   takes  place   on   return   of  summons; 

verified  complaint. 

1347.  .  .  .      Certain  section  of  the  code  applicable. 

1348.  .  .  .      Pleadings  in  action  on  bastardy  bonds. 
1 349  ....      Answer  of  title, 

1350.  .  .  .  Idem;   defendant  to  deliver  undertaking. 

1351....  Idem;    new    action   to    be    brought    in    supreme 

court. 

1352.  .  .  .  Old  action  thereupon  discontinued. 

L353.  .  .  .  Penalty  for  failure  to  deliver  undertaking. 

1354.  .  .  .  Title  appearing  for  plaintiff's  showing. 

1355.  .  .  .  Title;  same  cause  of  action  and  defense  in  new 

action. 

1356.  .  .  .      Answer  of  title  one  or  more  of  several  defenses; 

proceedings. 
1357....      Summary  proceedings. 
1358....      Summary  proceedings;  return  of  precept. 
1359.  .  .  .      Summary  proceedings;   answer  may  be  filed. 


Schedule  of  Laws  Repealed. 


471 


Section.  Subj.ct-matter. 

1360.  .  .  .  Summary  proceedings  may  be  transferred,  etc. 

1361 ....  Exhibition  of  accounts,  etc. 

1362.  .  .  .  Adjournments  time,  etc.;  effect  upon  arrest. 

1363.  .  .  .  Undertaking*  by  arrested  defendant  on  adjourn- 

ment. 

1364.  .  .  .      Adjournment  either  party;  undertaking. 

1365.  .  .  .      Conditions  may  be  imposed  for  adjournment. 

1366.  .  .  .      Dismissal  of  action  for  plaintiff's  failure  to  ap- 

pear. 
1367....      Defaults;  judgments  may  be   opened,   vacated, 
modified,  etc. 

1368.  .  .  .      Commissions  to  take  testimony;  code  provisions 

applicable. 

1369.  .  .  .  Testimony  de  bene  esse. 

1370.  .  .  .  Subpoenas. 

1371.  .  .  .  Trial  jurors,  list  of,  etc. 

1372.  .  .  .  Trial  by  jury;  drawing,  etc. 

1373.  .  .  .  Jury  may  be  summoned;  fee. 

1374.  .  .  .  How  summoned. 

1375.  .  .  .  Talesmen. 

1376.  .  .  .  Ballots  of  jurors  summoned,  but  not  drawn. 

1377.  .  .  .  Party  demanding,  to  deposit  trial  fee. 
1378 ....  Adjournments  after  return  of  jury. 

1379 .  .  .  .  Jurors'  qualifications  tried  summarily. 

1380.  .  .  .  Verdict;  requisites. 

1381.  .  .  .  Swearing  the  jury. 

1382.  .  .  .  Non-suit;  when  authorized. 

1383.  .  .  .  Judgment  for  plaintiff  on  default. 

1384.  .  .  .  Issues*  fact  and  law;  judgment  when  rendered. 
1385 ....  Judgment,  when  sum  due  exceeds  jurisdictional 

amount. 

1386.  .  .  .      Judgment  when  defendant  liable  to  arrest. 

1387....      Actions  may  be  continued  before  another  jus- 
tice. 

1388.  .  .  .      Powers  of  justice  while  trying  action. 

1389.  .  .  .      Justice  limited  to  civil  jurisdiction. 

1390.  .  .  .      Death  or  removal  not  to  impair  proceedings. 
1391 ....      Justice  may  administer  oaths,  etc. 

*  So   in   original. 


472 


Schedule  of  Laws  Repealed. 


Section.  Subject-matter. 

1392.  .  .  .  Transcripts  of  judgments  and  docketing. 

1393....  Execution  against  the  person. 

1394....  Replevin;  judgment  in,  etc.;   transcript. 

1395.  .  .  .  Action  against  joint  debtors. 

1396.  .  .  .  Defendants  not  summoned  to  be  designated. 

1397.  .  .  .  Docketing  judgment  in  another  county. 
1398 ....  Judgment  against  marshal. 
1399....  Execution;  requisites. 

1400 ....  Against  joint  debtors. 

1401.  .  .  .  Execution;  arrest. 

1402 ....  Renewal  of  execution. 

1403.  .  .  .  Sections  of  code  applicable;  execution.    " 

1404.  .  .  .  Enforcement  of  game  laws. 

1405 ....  Execution  in  favor  of  working  woman. 

1406 ....  Arrest  and  sale  of  property  limited. 

1407.  .  .  .  Marshal  when  liable  to  execution;  creditor. 

1408.  .  .  .  Return  of  execution;  satisfaction  of  judgment. 

1409.  .  .  .  Clerk's  docket;  what  to  contain. 

1410.  .  .  .  Entries  in;  how  made. 

1411.  .  .  .  Clerk  to  keep  index. 

1412 ....  Clerk  must  deliver  books,  papers,  etc.,  to  suc- 
cessor. 

1413.  .  .  .  Successor  may  issue  execution,  etc. 

1414.  .  .  .  Certified  copies,   papers,   etc.,  prima  facie   evi- 

dence. 

1415 ....  Sections  of  code  applicable,  etc. ;  contempt. 

1416....  Eees;   when  plaintiff's   demand  less  than  fifty 

dollars. 

1417.  .  .  .  Fees;  demand  over  fifty  dollars. 

1418.  .  .  .  Eees  in  summary  proceedings. 

1419.  .  .  .  Eees  of  marshals. 
1420 Costs. 

1421.  .  .  .  Costs  after  discontinuance  in  answer  of  title. 

1422.  .  .  .  Costs  in  action  on  bastardy  bonds,  etc. 

1423.  .  .  .  Costs  in  action  to  enforce  game  laws. 

1424.  .  .  .  Costs  in  action  by  working  woman. 

1425 ....  Costs  on  order  to  prosecute  marshal's  bond. 

1426.  .  .  .  Supreme  court  rules  made  applicable. 


Schedule  of  Laws  Repealed. 


473 


Section. 

1428. 
1429. 
1436. 

1437. 
1438. 
1439. 
1440. 
1700. 
1701. 
1702. 
1703. 

1704. 
1705. 
1706. 
1707. 
1708. 
1709. 
1710, 
1711 


Subject-matter. 

Duties  of  clerks. 

Clerks  to  account  for  and  pay  over  fees. 

Stationery,  furniture,  etc.,  furnished  by  corpo- 
ration. 

Definitions. 

Appeals. 

Stenographer's  fees  for  minutes,  etc. 

Transcript  of  process,  etc. ;  effect. 

Bond  to  be  executed  by  marshals. 

Prosecution  of  such  bond. 

In  what  court  prosecuted. 

Judgments  against  marshals;  transcripts;  execu- 
tions. 

Entry  of  judgment  against,  to  be  noted  on  bond. 

Amount  collected  credited  on  bond. 

Suspension  by  common  pleas  for  misconduct. 

Clerk  of  court  to  report  cancelled  bonds,  etc. 

Appointment  waived  for  failure  to  file  bond. 

Process  to  be  served  by  marshal. 

Fees  of. 

Certain  laws  to  sheriffs  made  applicable. 


Notes  to  Consolidation  Act  sections  repealed. 

Section  1427  is  omitted  from  repeal  schedule,  but  was  superseded  by- 
Charter  section  1373,  which  is  preserved  as  a  Charter  enactment.  See 
notes  to  title  VIII,  art.  I,  following  contents  and  preceding  section  282. 

Sections  1430  to  1436,  Consolidation  Act,  omitted  from  the  repeal 
schedule,  have  been  superseded  by  sections  1373,  1378,  and  1380  of  the 
Greater  New  York  Charter.     See  notes  to  §   1373,  Charter. 

Sections  1441  to  1699,  Consolidation  Act,  omitted  from  the  repeal 
schedule,  have  no  application  to  this  court. 


OF  "  THE  CODE  OF  CIVIL  PROCEDURE,"  THE  FOL- 
LOWING: 

Section.  Subject  matter. 

3116.  .  .  .  Justice  sixth  district  Brooklyn  to  be  attorney. 

3117.  .  .  .  Justices'  jurisdiction  in  Brooklyn  extended. 

3118.  .  .  .  Justices'  salaries,  fees,  etc. 

3119.  .  .  .  Clerk;  how  appointed;  salary,  bond,  etc. 


474: 


Disposition  of   Laws  Repealed. 


Section.  Subject  matter. 

3120 Duties  of  clerk. 

3126.  .  .  .      When  plaintiff  may  serve  complaint  with  sum- 

mons. 

3127.  .  .  .      Jury  trial;  when  and  how  demanded. 
3128 Setting  aside  default,  etc. 

3129.  .  .  .  Costs  upon  recovery  of  one  hundred  dollars. 

3130.  .  .  .  Costs  when  defendant  recovers  judgment. 

3131.  .  .  .  Costs  in  action  by  working  woman. 

3132.  .  .  .  Costs  upon  adjournment. 

3215....      Jurisdiction  civil  action  Xew  York  city  (old) 
exclusively. 

3216.  .  .  .      Removal  of  certain  actions  to  city  court. 

3217.  .  .  .      When  order  of  arrest  may  be  granted. 

3219.  .  .  .      Requisites  of  certain  undertakings. 

3220.  .  .  .      Docketing  judgments;  execution,  etc. 
3221....      Enforcement  of    certain  judgments  of   working 

woman. 
3222 .  .  .  .      Costs  in  action  bv  working  woman. 


Notes  to  Code  of  Civil  Procedure  sections. 

Sections  3121  to  3126,  3133  to  3215.  and  section  3218,  Code  of  Civil 
Procedure,  omitted  from  the  repeal  schedule,  have  no  application  to 
this  court. 

"  The  Section  Code  of  Civil  Procedure,  Revision  Section,"  as  it  is 
called,  will  be  found  at  the  bottom  of  the  second  column  next  to  the 
last  page.  Upon  tne  top  of  the  following  and  last  page,  second  column, 
it  is  erroneously  headed  "  Consolidation  Act  section." 

(This  table  to  be  eliminated  from  act,  is  included  as  an 
explanation.) 


TABLE  SHOWING  DISPOSITION  OF  LAWS 
REPEALED. 


Charter 
section. 

Section  of 
revision. 

Consolidation 
Act  section. 

Revision 
section. 

1284 

1. 

1361... 

.        1. 

1285 

1. 

1365.  .,. 

.      2. 

1286 

2. 

1366... 

.     3. 

1287 

3. 

Disposition  of  Laws  Repealed. 


475 


Charter 
section. 

Section  of 
revision. 

Consolidation       Revision 
Act  section.         sect.on. 

1367... 

.      310. 

1288... 

4  to  8,  inclusive, 
and     revision 
generally. 

1368... 

.      9. 

1289... 

.      25. 

1369... 

.      4  to  8, 

inclusive, 

1290. .. 

.      29. 

and  under  sub- 

jects 

stated  in 

section. 

1291.  .. 

.      16. 

1292.  .. 

.      12. 

1370... 

.      25. 

1293... 

.     17. 

1371... 

.      16. 

1294... 

.      40  and  293. 

1372. . . 

.     17. 

1295.  .  . 

.      41. 

1374. .. 

.      11. 

1296.  .. 

.      26. 

1375... 

.      12. 

1297... 

.     27. 

1376. .. 

.      13. 

1298.  .. 

.     37. 

1377... 

.      19. 

1299. .. 

Not  necessary. 

1379... 

.      10. 

1300. .. 

.      31. 

1380. .. 

.      18. 

1301... 
1302... 

.      36. 
.      55. 

1381,  13 

82.  Repe 

a  1  e  d  by 

charter  amend- 

atory 

act  1901. 

1303... 
1304. .. 

.      30. 
.      56. 

1384... 

.      29. 

1305    , 
1306.  .. 
1307. .. 

57. 

Not  necessary. 

.      58. 

1428. . . 

.      293  to 

304  inclu- 

sive. 

1308 . . . 

.      59. 

1429. . . 

.      306. 

1309. .  . 

.      60. 

Consolidate 
Act  sect  lot 

>n       Revision 
section. 

Consolidatk 
Act  section 

n       Revision 
section. 

1310. .. 

.      61. 

1366... 

.      106. 

1311. . . 

.      62. 

1337. .. 

.      107. 

1312. .. 

.      63. 

1338.  .  . 

.      108,  109,  111. 

1 3 1 

.      64. 

1339.  .. 

.      111. 

1314... 

.      65. 

1340. 

.      112. 

1315. .. 

.      66  and  67. 

1341. .. 

.      113,  114,  115. 

476 


Disposition  of  Laws  Repealed. 


Consolidation      Revision 

Consolidation        Revision 

Act  sectioz 

i.        section. 

Act  section 

section. 

1316. .. 

.     73. 

1342... 

.      117. 

1317. . . 

.      74. 

1343. .. 

.  118,  119,  120, 
123,  125,  126, 
127,  128. 

1318... 

.     75 

1344... 

.      129. 

1319. .. 

.     76. 

1345... 

130. 

1320... 

.     77. 

1346... 

.      145. 

1321... 

.,     83. 

1347... 

146  to  176,  in- 
clusive. 

1322... 

.      84. 

1348... 

.      178. 

1323... 

.      85. 

1349. .. 

179. 

1324... 

.      86. 

1350... 

180. 

1325. .. 

.      87. 

1351... 

181. 

1326. .. 

.      88. 

1352... 

182. 

1327... 

.      89. 

1353... 

183. 

1328... 

.      90. 

1354... 

184. 

1329... 

.      91. 

1355. .. 

185. 

1330... 

.      137  to  140,  inclu- 

sive. 

1356. .. 

186. 

1331... 

.      95. 

1357... 

1,  subdivision  9, 
and  under  sub- 
jects stated. 

1332... 

.      96,  97,  98. 

1358... 

1,  subdivision  9, 
and  under  sub- 
jects stated. 

1333. .. 

.      101. 

1359... 

1,  subdivision  9, 
and  under  sub- 
jects stated. 

1334. .. 

.      102,  103,  104. 

1360. .. 

1,  subdivision  9, 
and  under  sub- 
jects stated. 

1335... 

.      105. 

1361... 

165. 

1362... 

.      193. 

1390. .. 

15. 

1363... 

.      66,  67,  193. 

1391... 

10. 

1364... 

.      194. 

1392... 

260  and  261. 

1365... 

.      195. 

1393 

251. 

1366... 

Not       necessary, 

covered  by  248. 

1394... 

261. 

Disposition  of  Laws  Repealed. 


477 


Consolidation 
Act  section. 

1367 


1368 


1369.. 
1370.. 
1371. . 
1372.. 
1373.. 
1374.. 
1375.. 
1376.. 


1377. 

1378, 
1379. 
1380, 
1381. 

1382, 

1383, 

1384, 

1385, 

1386, 

1387, 

1388 

1389, 


Revision 
section. 

253,     254,     255, 
256. 

205  to  226,  inclu- 
sive. 


196. 

233. 

231-232. 

234. 

235. 

236. 

237. 


Included  in  last 
7  sections  and 
238. 

238. 

240. 

239. 

240. 

248. 

147  to   230. 

230. 

250. 

251. 

14. 

4   to   8. 

Not  necessary. 


Consolidation 
Act  section. 


1395 


1396, 

1397. 
1398. 
1399. 
1400. 
1401. 
1402. 
1403 . 
1404. 


1405 . . . 
1406... 
1407... 
1408 . . . 
1409 . . . 


1410... 

1411... 

1412. .. 

1413... 

1414... 

1415 

1416. . . 
1417... 


Revision 
section. 


264  to  268,  in- 
clusive. 

264  to  268,  in- 
clusive. 

269. 

270. 

271. 

266. 

272. 

273. 

262,  263,  273. 

Not  necessary, 
except  in  sec- 
tion 1,  subdivi- 
sion 7. 


274. 

275. 

276. 

277. 

284  to  289,  in- 
clusive. 

284  to  289,  in- 
clusive. 

284  to  289,  in- 
clusive. 

284  to  289,  in- 
clusive. 

284  to  289,  in- 
clusive. 

284  to  289,  in- 
clusive. 
4  to  8,  inclusive. 

44.     Title  X. 

Title  X. 


478 


Disposition  of  Laws  Repealed. 


Consolidation      Revision 
Act  section.        section. 

Consolidation        Revision 
Act  section.          section. 

1418... 

Title  X. 

1707 300. 

1419. .. 

Title  X. 

1708 301. 

L420. . . 

Title  X. 

1709 302. 

1421. .. 

Title  X. 

1710 Title  X. 

1422... 

Title  X. 

1711 304. 

1423. . . 

Title  X. 

Section  Code 

of     C.     P.  .  .      Revision 
section. 

1424... 

Title  X. 

1425... 

Title  X. 

3116  to  3133, 

inclusive .  .    (Brooklyn  old 
provisions.) 
Under  sub- 
jects stated 
in  sections. 

1426... 

19. 

1428... 

282. 

3215  to  3222, 

inclusive .  .   Old  X.  Y.  city 
provisions 
under   sub- 
jects stated 
in  sections. 

1429... 

.     283. 

1436. .. 

18. 

1437... 

353. 

1438... 

310  to  328. 

1439. .. 

Title  X. 

1440... 

Not  necessary, 

1700... 

294,  295,  296. 

1701... 

294,   295,  296 

1702. . . 

294,  295,  296. 

1703. .. 

297. 

1704... 

298. 

1705... 

299. 

1706.... 

306. 

289. 


Disposition  of  Laws  Repealed.  479 

Notes  to  table  showing  disposition  of  laws  repealed. 

The  statement  at  the  head  of  this  table  that  it  is  "  to  be  eliminated 
from  this  act,  and  is  included  as  an  explanation  "  is  contained  in  the 
original  act  filed  in  the  office  of  the  Secretary  of  State,  and  it  has  not 
been  eliminated  from  the  act,  but  is  a  part  of  the  act  for  the  purpose 
of  explanation. 

Charter  §   1367,  revision  §  310,  §  353  should  be  added. 
§   1371,  revision   §    16,   should  be  §   17. 
§   1372,  revision  §   17,  should  be  §   18. 
§   1373,    omitted    from   the  table,    is   preserved   as   a    Charter 

enactment. 
§   1375,  revision  §  12,  should  be  §  13. 
§   1376,  revision  §  13,  should  be  §  14. 
§   1377,  revision  §  19,  should  be  §  20. 
§    1378,    omitted    from    the   table,    is    preserved    as    a    Charter 

enactment. 
§   1380,  revision  §  18,  should  be  §  19. 
§   1383,    omitted    from    the    table,    is    preserved    as    a    Charter 

enactment. 
§   1384,  revision  §  29,  should  be  §  27. 
§§   1385  to  1424,  omitted  from  the  table,  have  no  application  to 

this  court. 

Consolidation  Act. —  The  sections  run  along  numerically  from  sec- 
tion 1284  to  section  1335.  These  are  followed  by  section  1362  to  section 
1366,  with  a  repetition  of  section  1366  on  the  top  of  the  next,  the  second 
column,  which  latter  should  be  section  1336.  The  table  then  continues  in 
regular  order  until  section  1361  is  reached.  Section  1362,  which  should 
follow,  is  to  be  found  five  lines  from  the  bottom  of  the  first  column,  and 
continues  to  section  1366;  the  continuation  from  this  section  —  section 
1367  —  is  to  be  found  on  the  top  of  the  next  page,  first  column,  and 
follows  the  numerical  order  until  section  1389  is  reached,  when  section 
1418,  instead  of  section  1390,  appears.  Section  1390  is  to  be  found  in 
the  second  column,  fifth  line  from  the  bottom  of  the  preceding  page, 
and  runs  along  numerically  to  section  1394;  the  continuation  from  this 
section — section  1295  —  is  to  be  found  on  the  top  of  the  next  page, 
second  column;  the  table  then  continues  in  numerical  order  to  section 
1417,  when  section  1707  appears.  Section  1418  is  to  be  found  in  the 
first  column,  six  lines  from  the  bottom  of  the  same  page  and  runs  to 
section  1423;  the  continuation,  section  1424,  is  to  be  found  on  the  top 
of  the  next  or  last  page  of  the  act,  first  column,  and  continues  numeri- 
cally to  section  1440,  excepting  sections  1427,  1430  to  1436,  this  is  fol- 
lowed by  section  1700  to  section  1706.  Section  1707  is  to  be  found  on 
the  preceding  page,  second  column,  fifth  line  from  the  bottom   of  the 


480  Charteb   Sections   Preserved. 

page,  continuing  numerically  to  section  1711,  the  end  of  the  sections  of 
the  Consolidation  Act    which  have  any  application  to  this  court. 
Charter  §     1387,  revision  §   14,  should  be  §   15. 

§§   1424  to   1428.  omitted  from  the  table,  were  preserved  as 

Charter  enactments. 
§§   1440  to  1700  have  no  application  to  this  court. 

CHAETER  SECTIONS  PRESERVED. 

Section  1.    The  city  of  New  York  corporations  consolidated;  short 

title   of  this  act. 
2.  Division  into  boroughs. 

1350.  Courts,  etc.,  abolished. 

1351.  Municipal  court  created. 

1352.  Justices. 

1353.  Qualifications,  etc.,  of  justices. 

1354.  Oath. 

1355.  Salary. 

1356.  Terms. 

1357.  Vacancies. 

1358.  Districts. 

1359.  Borough  of  The  Bronx. 

1360.  Borough  of  Manhattan. 

1361.  Borough  of  Brooklyn. 

1362.  Borough  of  Queens. 

1363.  Borough  of  Richmond. 
1373.  Clerks  and  assistant  clerks. 
1378.  Clerks  to  administer  oaths. 
1383.  Removal. 

1424.  The  marshals. 

1425.  Appointment  of. 

1426.  Assignment  of,  by  the  mayor. 

1427.  Mayor  to  appoint. 


"Forms  repay  the  close  attention  of  counsel,  as  well  as  of  attorney 
and  clerk.  They  are  not  merely  weapons  of  contest,  for  whatever  is 
said,  the  form  remains  to  show  what  ivas  done."  —  Austin  Abbott. 


APPENDIX  OF  FORMS. 


<  Revised  by  Hon.  George  F.  Roesch,  one  of  the  Justices  of  this  Court 
and  Chairman  of  the  Committee  on  Revision  and  on  Forms  and 
Rules. ) 


No.  i. 

Summons. 

(Municipal  Court  Act,  §  28.) 

MUNICIPAL  COURT  OF  THE  CITY  OF   NEW  YORK,   BOROUGH  OF 

DISTRICT. 


Plaintiff,    j 
against  y  Summons. 

Defendant. 


To  the  above-named  defendant: 

You  are  hereby  summoned  and  required  to  appear  in  this  action,  in 
the  Municipal  Court  of  the  city  of  New  York,  borough  of  , 

District,  in  the  courtroom  thereof,  at  ,  in  the 

city  of  New  York,*  on  the  day  of  ,  190  ,  at 

o'clock  in  the  forenoon,  to  answer  the  complaint  of  the  plaintiff  in  this 
action,  who,  if  you  then  fail  to  appear  and  answer,  will  take  judgment 
against  you  for  the  sum  of  dollars,  with  interest  from  the 

day  of  ,  190  ,  together  with  the  costs  of  this  action. 

Dated  ,  190  .  Clerk. 

NOTES. 

A  copy,  or  an  "  ailia9  "  summons  is  the  same  as  above,  except  that  it 
has  the  word  "  copy,"  or  "  alias  "  before  the  word  "  summons,"  opposite 
the   title. 

See  also  case  of  Ellinghausen  v.  Leask,  1  Abb.  N.  C.  299. 

81  [481] 


482  AprE^mx  of  Fokms. 

Where  an  order  of  arrest  accompanies  the  summons,  substitute  at  the* 
the  following:  "Immediately  after  your  arrest  in  this  action."' 
Municipal  Court  Act,  §  58. 

The  summons  in  an  action  prosecuted  by  a  "  pauper,"  or  poor  person, 
is  the  same  as  an  ordinary  summons,  and  is  stamped  "  Free,"  or  "  Free 
Alias." 

This  summons  must  be  returned  to  the  clerk  the  day  before  the  return 
day,  and  the  calendar  fee  paid,  to  entitle  it  to  be  placed  on  the  calendar. 
Rule  4,  Rules  of  Practice  of  this  Court. 


No.  2. 
Marshal's  Certificate  of  Service. 

MUNICIPAL   COURT   OF   THE   CITY   OF  ,   BOROUGH   OF 

JUDICIAL    DISTRICT. 

City  of  ,  ss.: 

On  the  day  of  ,  190  ,  I  served  a  copy  of  the  within 

summons  and  complaint  in  the  borough  of  ,  in  the  city  of 

New  York,  on  the  within-named  defendant  ,  in  person,  at  No. 
street. 

Dated  ,  190  .  Marshal. 


No.  3. 
Affidavit  of  Service. 

(See  Rule  18,  Supreme  Court  Rules,  and  also  Rules  of  Practice  of  this 

Court. ) 
City  of  ,  ss.: 

,  being  duly  sworn,  says  that  he  is  years  of  age; 

that  on  the  day  of  ,  at  No.  r 

in  said  borough,  in  the  city  of  New  York,  he  served  a  copy  of  the  within 
summons  and  complaint  on  ,  the  defendant  therein  named, 

by  delivering  to  and  leaving  with  him  personally  a  true  copy  thereof; 
that  he  knew  the  person  so  served  to  be  the  person  described  in  said 
summons  as  defendant  therein. 

Sworn   to  before  me,   this  ) 

day  of  ,  190  .   j 

[Signature.] 


Appendix  of  Forms.  483 

No.  4- 
Marshal's  Return  of  Nonservice. 

[Title  of  cause.] 

[Venue.]  ss.: 

I  hereby  certify  that  the  within  summons  and  complaint  was  not 
served,  for  the  reason  that,  after  diligent  search,  I  could  not  find  the 
the  defendant  [or,  if  a  corporation,  "any  officer  of  the  defendant"] 
upon  whom  I  could  serve  the  same  [or  other  reason,  as  the  case  re* 
quires]. 

Dated  ,  190  .  Marshal. 


No.  5. 
Petition,  etc.,  for  Leave  to  Prosecute  as  a  Poor  Person. 

(See  Rules  of   Practice  of  this   Court;    Code  Civ.   Proc,    §§   458-468; 
Municipal  Court  Act,  §§  45-53.) 

To  the  Municipal  Court  of  the  city  of  New  York,  Borough  of  , 

Judicial  District  : 

The  undersigned  respectfully  represents  that  he  resides  at  , 

and  has  a  good  cause  of  action,   arising  on  against 

,  who  resides  at  ,  and  that  is  not  worth 

the  sum  of  one  hundred  dollars,  exclusive  of  the  wearing  apparel  and 
furniture   necessary   for  self   and   family,   and   the   above  subject- 

matter  which  is  not  in  possession  of.     Wherefore  your  peti- 

tioner  respectfully   asks   the   court   for   leave   to   prosecute   as   a   poor 
person,  and  prays  that  an  attorney  and  counsel  be  assigned  to  , 

to  conduct  the  action. 

Dated  ,  190  .  [Signature.} 

[Venue.]  ss.: 

,   of   said  city,  being  duly   sworn,  says,  that  the   state- 
ments contained  in  the  above  petition  are  true. 

Sworn    to    before   me,    this 
day  of 

[Signature] 


this  | 

,  190  .    \ 


I  hereby  certify  that  I  have  examined  the  claim  mentioned  in  the 
foregoing  petition,  and  upon  such  examination  am  of  the  opinion  that 
the  petitioner  has  a  good  cause  of  action. 

Dated  ,   190  .  [Signature  of  attorney.] 


484  Appendix  of  Forms. 

MUNICIPAL   COURT  OF   THE    CITY   OF    NEW   YORK,    BOROUGH   OF 

Upon  the  foregoing  petition,  affidavit,  and  certificate,  Ordered,  that 
the  petitioner  be  admitted  to  prosecute  the  above-described  claim  as  a 
poor  person. 

,  Esquire,  is   hereby  assigned  as  attorney   and  counsel  in 
the  action. 

Dated  ,   190  .  Justice. 


No.  6. 

Affidavit  by  Employee  against  Employer  for  Services,  Male  or  Female. 
(Municipal  Court  Act,  §§  44,  348.) 

MUNICIPAL   COURT  OF   THE    CITY   OF   NEW   YORK,    BOROUGH   OF 
[]'cnuc.~\  ss.: 

,  being  duly  sworn,   says  that   he   resides  at  No. 
street,  in  the  city  of  New  York  in  the  borough  of 
,  District,    and    has    lately   been    in   the   employ   of 

,  who  transacts  business  or  resides  at  in  said 

city  and  borough.     That  the  sum  of  $  .,_  is  now  due  from 

such  employer  to  this  deponent  for  services  performed  by  this  deponent 
while  in  such  employment.  That  he  has  made  demand  upon  the  de- 
fendant for  payment,  and  that  payment  was  refused.  That  deponent 
has  a  good  and  meritorious  cause  of  action  against  said  employer  to 
recover  said  sum  of  money.  [State  whether  any  previous  application 
teas  made,  and,  if  so,  its  disposition.] 

Sworn   to   before    me,    this 
day  of  ,  190 

[Signature.] 

Appointment  of  Guardian  for  Infants. 

(Municipal  Court  Act,   §  41.) 

An  infant  cannot  sue  in  his  own  name.  Hulburt  v.  Newell,  4  How. 
Pr.  93.  Nor  can  his  general  guardian  sue  for  him  without  a  special 
appointment.  Hoyt  v.  Hilton,  2  Edw.  Chy.  Rep.  202;  Buerman  v.  Buer- 
man,  3  How.  N.  S.  393;  S.  C,  17  Abb.  N.  C.  391.  He  must  first  apply  to 
the  judge  of  the  court  in  which  he  would  sue  for  the  appointment  of  a 
suitable  person  as'  guardian  to  appear  for  him  for  the  purpose  of  the 
suit.  This  must  be  done  before  the  commencement  of  the  action  (  Wilder 
v.  Emler,  12  Wend.  191);  otherwise  it  will  be  irregular.  Hill  v. 
Thacther,  3  How.  Pr.  407.  This  application  must  be  made  by  the  infant, 
if  he  is  of  the  age  of  fourteen;  if  not,  then  by  his  general  guardian, 
or  some  relative  or  friend.  Hahn  v.  Van  Doren,  1  E.  D.  Smith,  411; 
Anablc  v.  Anable,  24  How.  Pr.  92. 


Appendix  of  Fokms.  485 

No.  7. 

Petition,   Affidavit,  and   Order  for    Appointment   of  Guardian   for  an 
Infant   under  the  Age  of  Fourteen  Years. 

To  the  Municipal  Court  of  the  city  of  New  York,  Borough  of  , 

District: 
The  petition  of  ,  of  the  borough  of  ,  respect- 

fully shows: 

I.  That  ,  of  said  borough,  is  an  infant  under  the  age  of 
fourteen  years,  and  is  now  thirteen  years  of  age. 

II.  That  your  petitioner  is  the  stepfather  of  said  ,  and 
has  the  care  and  charge  of  said  infant,  and  educates,  supports,  and  main- 
tains him  as  such  stepfather   [or  set  forth  appropriate  facts] . 

III.  That  the  said  infant,  ,  has  good  cause  of  action 
against  to  recover  the  sum  of  dollars,  for 
wages  due  him  by  said  ,  for  work,  labor,  and  services  from 
about  the  day  of  ,  to  about  the  day  of  , 
190  ;  and  that  it  is  desirable  that  an  action  be  commenced  in  this  court 
to  recover  said  sum  of  dollars.  [As  to  previous  application, 
see  Form  No.  6.] 

Wherefore  your  petitioner  prays  that  he  may  be  appointed  the  guar- 
dian of  said  infant,  ,  for  the  purposes  of  said  action. 
Dated                       ,    190  .  [Signature.] 

[Venue.]  88.: 

,  being  duly  sworn,  deposes  and  says  that  he  has  read 
the  foregoing  petition,  which  is  true  to  his  own  knowledge,  except  as 
to  the  matters  which  are  therein  stated  to  be  alleged  iipon  information 
and  belief,  and  as  to  those  matters  he  believes  it  to  be  true. 

Sworn  to  before  me,  this  1 

day  of  ,  190  .   \ 

[Signature.] 


No.  8. 
Consent  of  Guardian. 

I  hereby  eonrent  to  become  the  guardian  ad  litem  of  ,  and 

to  be  responsible  for  costs  if  he  fail  in  the  action,  for  the  purposes  men- 
tioned in  the  foregoing   petition. 

Dated  ,    190  .  [Signature.] 


486  Appendix  of  Forms. 

No.  9. 
Order  Thereon. 

On  reading  and  filing  the  petition  of  ,  and  the  affidavit 

thereto   annexed,   each    dated  ,    190  ,    it    is   ordered   that 

of  the  borough  of  ,  be  appointed  the  guardian 

ad  litem  of  said  ,  for  the  purpose  of  an  action  to  be  com- 

menced in  this  court  against  one 

Dated  ,    190  .  [Signature  of  justice.} 

Appointment  of  Guardian  for  Infant  Defendant. 

(Municipal  Court  Act,  §§  41,  42,  49.) 

Where  an  infant  is  a  defendant,  it  is  essential  that  a  guardian  ad 
litem  should  be  appointed  for  him,  after  service  of  the  process,  and 
before  proceeding  to  join  issue.  (15  Abb.  Pr.  12.)  Judgment  rendered 
against  an  infant  for  want  of  an  answer  and  without  thp  appointment 
of  a  guardian  ad  litem,  is  irregular,  and  will  be  set  aside  on  motion. 
Kellogg  v.  Klock,  2  Code  Rep.  28;  Hockey  v.  Grey,  2  Johns.  192. 


No.  10. 


Petition   by   Infant   Defendant   over   Fourteen    Years   of  Age  for   the 
Appointment  of  a  Guardian  Ad  Litem. 

To  the  Municipal  Court  of  the  city  of  New  York,  Borough  of  , 

Judicial  District: 
The  petition  of  ,   the   defendant  in  this  action,   respect- 

fully shows: 

I.  That  an  action  has  been  commenced  against  your  petitioner  in  this 
court  by   [here  state  the  object  of  the  action]. 

II.  That  your  petitioner  is  an  infant  of  the  age  of  years,  and 
resides  with  his  father  at  No.  ,  street,  in  the  borough 
of                        ,  and  that                         is  his  general  guardian. 

III.  That  six  days  have  not  elapsed  since  the  service  of  the  summons 
on  your  petitioner  [or]  that  no  application  for  appointment  of  guar- 
dian (id  litem  to  appear  in  behalf  of  your  petitioner  in  said  action  has 
been  made,  to  the  best  of  your  petitioner's  knowledge  and   belief. 

Wherefore    your   petitioner    asks    that  may   be   appointed 

his  guardian  ad  litem,  to  appear  and  defend  said  action  on  his  behalf. 

[Signature.} 

\  Verification,  consent  of  proposed  guardian,  and  proof  of  competency, 
as  in  preceding  forms.] 


Appendix  of  Forms.  487 

No.  ii. 
Order  of  Appointing  Guardian  Ad  Litem  for  Infant  Defendant. 

{Title  of  action.] 

On  reading  and   filing  the  annexed   petition  of  ,  verified 

the  day  of  190  ,   for   the   appointment  of 

as  his  guardian  ad  litem,  and  the  consent  of  said  ,  Ordered, 

that  said  be  and  is  hereby  appointed  guardian  ad  litem  for 

the  petitioner  ,  ana  authorized  and  directed  to  appear  and 

defend  on  his  behalf  the  action  mentioned  therein. 

[Signature  of  justice.] 


No.   12. 

Petition  by  Relative  or   Friend  of  Infant  Defendant  under  Fourteen 

Years  of  Age. 

To  the  Municipal  Court  of  the  city  of  New  York,  Borough  of  , 

Judicial  District: 
The  petition  of  respectfully  shows: 

I.  That  the  above-entitled  action  has  been  commenced  by  service  of 
a  summons  upon  ,  and  that  the  object  of  said  action  is 
[here  state  it  concisely]. 

II.  That  said  is  an  infant  under  the  age  of  fourteen  years, 
and  resides  with  the  petitioner,  who  is  his  father,  and  that  he  has  no 
general  guardian  [or  otherwise  state  what  guardianship  he  has]. 

Wherefore  your  petitioner  asks  that  a  guardian  ad  litem  be  appointed 
to  appear  and  defend  said  action  on  behalf  of  said  infant. 

[Signature.] 
[No  previous  application,  etc.,  as  in  Form  No.  6.] 
[Verification,  consent,  and  order,  as  in  preceding  forms.] 


No.  13. 

Application  and  Affidavit  to  Obtain  an  Order  of  Arrest. 

(Municipal  Court  Act,  §  57.) 

To  the  Municipal  Court  of  the  city  of  New  York,  Borough  of  , 

District  : 

The  subscriber  hereby  applies  on  behalf  of  for  an  order 

of  arrest  against  the  person  of  on  the  grounds  set  forth 

in  the  affidavit  hereunto  annexed. 

Dated    the  day  ,    190  .  [Signature.] 


488  Appendix  op  Forms. 

[Venue.']  ss.: 

,  being  duly  sworn,  doth  depose  and  say  that  he  resides 
at  No.  street,  in  the  borough  of  ,  in  the  city 

of 

That  ,  who  resides   at  ,   is  justly  indebted 

unto  ,  who  resides  at  ,  in  the  sum 

of  dollars,  over  and  above  all   payments  and  set-offs. 

[State  facts.] 

That  said  has  a  cause  of  action  against  said  for: 

That  the  provision  of  law  under  which  the  foregoing  application  for 
an  order  of  arrest  is  made,  and  which  authorizes  the  issue  of  an  order 
of   arrest  as  follows : 

That  the  facts  and  circumstances  which  show  the  within 

are  as  follows :     [State  as  to  no  previous  application  as  in  Form  No.  6.} 

Sworn  to  before  me,  this  J 

day  of  ,  190  .   j 

[Signature.] 


No.  14. 
Undertaking  to  Obtain  Order  of  Arrest. 

(Municipal  Court  Act,  §  57.) 
[Title  of  action.] 

Whereas  an  application  has  been  made  or  is  to  be  made  by 
to  the  Municipal  Court  of  the  city  of  New  York,  Borough  of  , 

District,  for  an  order  of  arrest  in  favor  of  , 

the  above-named  plaintiff,  against  the  person  of  ,  the  above- 

named  defendant. 

Now  therefore  and  in  consideration  of  the  granting  of  said  applica- 
tion and  the  issuing  of  said  order  of  arrest,  and  of  one  dollar  to  us  in 
hand  paid,  we 

do  hereby,  in  pursuance  of  the  statutes  of  the  State  of  New  York  in 
such  case  made  and  provided,  jointly  and  severally  undertake  and  agree 
that  if   the  defendant  in   the   above-entitled  action  recover  judg- 

ment against  the  said  plaintiff,  that  the  said  plaintiff  will  pay  to  said 
defendant  all  costs  and  extra  costs  that  may  be  awarded  to  said  defend- 
ant ,  and  all  damages  which  he  may  sustain  by  reason  of  the  arrest 
in  said  action  not  exceeding  the  sum  of  dollars  [double  the 

amount  claimed]. 

In   witness   whereof,  ha       hereunto   set  hand       the 

day  of  ,  190  . 

Signed  and  delivered  in  the  presence  of  [Signature.] 


Appendix  of  Foems.  489 

[Venue.]  ss.: 

,  being  duly  sworn,  doth  depose  and  say  that  he  is  one 
of  the  sureties  to  the  foregoing  undertaking,  that  he  resides  at  No. 

street,   in  the  borough   of  ,    in   the   city   of 

New  York,  and  is  a  holder  within   this  , 

and  is  worth  the  sum  of  dollars  [twice  the  amount  speci- 

fied in  the  undertaking]  over  all  his  debts  and  liabilities  which  he  owes 
or  has  incurred,  and  exclusive  of  property  exempt  by  law  from  levy 
and  sale  under  an  execution. 

Sworn  to  before  me,  this  ) 

day  of  ,  190  .    j 

[Signature.] 

[Venue.]  ss.: 

,  being  duly  sworn,  doth  depose  and  say  that  he  is  one 
of  the  sureties  to  the  foregoing  undertaking,  that  he  resides  at  No. 

street,  in  the  borough  of  ,    in  the  city  of 

New  York,  and  is  a  holder  within   this  , 

and  is  worth  the  sum  of  dollars  [twice  the  amount  speci- 

fied in  the  undertaking]  over  all  his  debts  and  liabilities  which  he  owes 
or  has  incurred,  and  exclusive  c-f  property  exempt  by  law  from  levy 
and  sale  under  an  execution. 

Sworn  to  before  me,  this 


day  of  ,  190 


•  f 


[Signature.] 


[Venue.]  ss.: 

I  certify  that  on  this  day  of  190  ,  before  me  person- 

ally came  the  within  named  ,  to  me  known,  and 

known  to  me  to  be  the  individuals  described  in,  and  who  executed  the 
within  undertaking,  and  severally  acknowledged  to  me  that 

they  executed  the  same. 

Notary  Public,  Co. 

I  approve  of  the  within  undertaking  as  to  form  and  the  sufficiency 
of  the  sureties  therein  named. 
Dated  ,    190  .  [Signature.] 


No.  15. 

Order  of  Arrest. 

(Municipal  Court  Act,  §  58.) 
[Title  of  action.] 

The  People  of  the  State  of  New  York,  to  any  Marshal  of  the  city  of 
New  York,  greeting: 

Whereas,  it  has  been  made  to  appear  by  affidavit  of  that 

the    above-named    plaintiff   has   a   good   and    sufficient   cause   of   action 


490  Appendix  of  Forms. 

against  the  above-named  defendant,  and  that  pursuant  to  the  statutes 
of  the  State  of  New  York  in  such  case  made  and  provided,  an  order  for 
the  arrest  of  the  said  defendant  may  issue  by  reason  of  and 

that  the  undertaking  required  by  law  has  been  duly  executed  and 
approved. 

Now  therefore  you  are  hereby  commanded  to  arrest  the  said  defend- 
ant, ,  if  he  c;«n  be  found  in  the  city  of  New  York,  and  forth- 
with bring  him  before  the  Municipal  Court  of  the  city  of  New  York, 
borough  of  ,  District,  at  the  courtroom  of  said  court, 
No.                           ,  in  said  borough. 

You  are  further  commanded  to  make  return  of  this  order  to  said 
court  with  your  proceedings  thereunder  as  prescribed  by  law. 

I  direct  that  the  summons  accompanying  this  order  be  made  return- 
able immediately  upon  the  arrest  of  the  defendant. 

The  defendant  may  be  let  to  bail  in  the  sum  of  dollars. 

Dated  the  day  of  ,  190  . 

Justice  of  said  court. 
Clerk. 
[Venue.]  ss.: 

I  hereby  certify  that  on  the  day  of  ,  190  ,  at 

o'clock,  in  the  noon,  at  No.  street,  in  the  borough  of 

,  in  the  city  of  New  York,  I  served  upon  the  within- 
named  defendant,  in  person,  the  within  order  of  arrest,  the  undertaking 
and  all  the  papers  upon  which  said  order  of  arrest  was  granted,  and 
at  the  same  time  and  place  I  served  on  said  defendant  ,  in  person,  the 
summons  issued  in  the  action  and  the  complaint  therein  by  delivering 
to  and  leaving  with  him  true  copies  of  the  same  and  showing  him  the 
originals  thereof;  and  that  I  know  the  person  so  served  to  be  the  de- 
fendant in  said  action. 

I  further  certify  that  at  the  time  above  mentioned,  I  arrested  the  said 
defendant,  ,  and  took  him  forthwith  before  the  justice  who 

issued  the  order  and  that  upon  making  the  arrest  I  immediately 

gave  notice  thereof  to  plaintiff  ,  to  wit:   at  o'clock  in  the 

noon,   on  the  day  of  ,   190  . 

Dated  ,   190  .  Marshal. 

EXTRACTS    FROM    THE    LAW    GOVERNING    ORDERS    OF    ARREST. 

The  marshal,  upon  arresting  the  defendant  by  virtue  of  an  order  of 
arrest,  must  at  the  same  time  serve  upon  him  the  summons,  and  also  a 
copy  of  the  order  of  arrest  and  of  the  papers  upon  which  it  was  granted. 
Municipal  Court  Act,  §  59. 

The  marshal  making  the  arrest  must  immediately  give  notice  thereof 
to  the  plaintiff,  and  indorse  on  the  order  of  arrest  and  subscribe  a  cer- 
tificate stating  the  time  of  serving  the  same,  and  of  his  giving  notice  to 
the  plaintiff.     Municipal  Court  Act,  §  61. 


Appendix  of  Forms.  491 

No.  1 6. 
Undertaking  upon  Arrest  by  Defendant. 

^Title  of  court  and  action.] 

The  above-named  defendant,  ,  having  been  arrested  by 

,  one  of  the  marshals  of  the  city  of  New  York,  upon  an 
order  of  arrest  granted  by  Hon.  ,  justice  of  said  court  in  a 

•certain  action  therein,  brought  by  the  above-named  plaintiff,  against 
the  above-named  defendant,  now  therefore  we,  of 

and  ,  do  hereby  jointly  and  severally  undertake  in  the  sum 

of  dollars   [sum  specified  in  the  order  of  arrest]   that  said 

■defendant  arrested  as  aforesaid,  will  attend  in  person  at  the  opening 
of  said  court  on  the  next  day  thereafter  when  it  is  there  in  session, 
then  this  obligation  to  be  void,  otherwise  it  remains  in  full  force. 

Dated,  New  York,  ,   190  . 

[Signatures.} 

NOTE. 

Add  justification  (double  amount),  acknowledgment  and  approval; 
■one  or  more  sureties  will  suffice.  The  officer  taking  the  acknowledg- 
ment, must,  if  the  marshal  so  requires,  examine  under  oath  to  a  reason- 
able extent  the  persons  offering  to  become  bail  concerning  their  prop- 
erty and  their  circumstances.  Defendant  may  deposit  with  the  marshal 
the  sum  specified  in  the  order  of  arrest.     Municipal  Court  Act,  §§  62,  63. 


No.  17. 
Undertaking  of  Defendant  on  Adjournment  when   under  Arrest. 

(Code  Civ.  Proc,  §§  3218,  3180,  and  Municipal  Court  Act,  §  67.) 
[Title  of  action.] 

Whereas,  the  above-named  defendant  has  been  arrested  in  this  action, 
and  issue  has  been  joined  therein,  and  he  has  applied  for  an  adjourn- 
ment to  the  day  of  ,  190  ,  which  has  been  granted. 
Now  therefore  we  ,  of  No.  street,  and  of 
No.  street,  in  the  borough  of  ,  in  the  city 
of  New  York,  do  jointly  and  severally  undertake  and  agree  that  the 
said  defendant  shall  appear  on  the  said  adjourned  day,  and  not  de- 
part until  duly  discharged  according  to  law,  or  until  after  the  trial 
and  judgment  in  such  action,  and  that  he  will  surrender  himself 
into  custody,  if  any  execution  be  issued  upon  said  judgment  when 
obtained  against  him  in  this  action;  and  if  he  shall  not  so  appear 
and  remain  until  after  the  trial  and  judgment,  and  surrender  him- 
self on  said  execution,  the  amount  recovered  in  said  judgment,  to- 
gether with  all  costs  and  extra  costs  that  may  be  awarded  therein. 

Dated  day  of  ,   190  . 

[Signatures.] 


402  Appendix  of  Forms. 

[Venue.}  ss.: 

and  of  said  borough,  being  duly  sworn,  say, 

and  each  for  himself  says,  that  lie  resides  in  the  borough  of  , 

in  the  city  of  New  York,  and  that  he  is  a  holder  therein,  and 

is  wonth  the  sum  of  dollars,  over  and  above  all  debts  and 

liabilities,  and  property  by  law  exempt  from  execution. 

Sworn  to  before  me,  this  | 

day  of  ,  190  .    j" 

[Signature.-] 
[Venue.]  ss.: 

On  this  day  of  ,  190  ,  before  me  personally  appeared 

and  to  me  known  to  be  the  persons  described  in, 

and   who   executed   the   foregoing   undertaking,   and  who   severally   ac- 
knowledged that  they  executed  the  same. 

Notary    Public,  Co. 

Approved  as  to  form  and  sufficiency. 

Justice. 

NOTE. 

This  undertaking  need  not  be  given,  if  defendant  has  given  bail  or 
made  a  deposit  under  Municipal  Court  Act,  §  62. 


No.   18. 

Application,  Affidavit,  and  Undertaking  for  Warrant   of  Attachment. 

(Municipal  Court  Act,   §§  73-92.) 

To  the  Municipal  Court  of  the  city  of  New  York,  Borough  of  f 

District : 
The  subscriber  applies  for  a  warrant  of  attachment  against  the  prop- 
erty  of  on  the  ground   set  forth   in  the  affidavit  hereunto 
annexed. 

Dated  the  day   of  ,   190  . 

[Signature.] 
[Venue.]  ss.: 

,  being  sworn,  says  that  he  resides  at  No. 
street,   in   the   borough   of  ,   in   the   city   of 

New  York ;    that  is   justly   indebted   unto 

who  resides  at  No.  street,  in  said  borough,  in  the   sum 

of  over  and  above  all  counterclaims  known  to  him,  which 

the  said  ha     against  which  debt  arose  as 

follows:      [Here  specify.] 

[No  previous  application  as  in  Form  No.  6.] 

Sworn  to  before  me,  this  ) 

day  of  ,  190  .    J  [Signature.] 


Appendix  or  Forms.  493 

UNDERTAKING. 

Whereas,  plaintiff,  having  applied  to  the  Municipal  Court  of  the  city 
of  New  York,  borough  of  ,  Judicial  District,  for  a 

warrant  of  attachment  against  the  property  of  ,  defendant, 

and  such  court  having  ordered  the  warrant  to  issue  on  filing  the  under- 
taking required  by  statute:  Now,  in  consideration  thereof,  and  one  dol- 
lar to  us  in  hand  paid,  we  and  of  the  borough 
of  ,  in  the  city  of  New  York,  do  jointly  and  severally 
undertake  and  agree,  that  if  the  said  defendant  recover  judgment 
against  the  said  plaintiff,  or  in  case  the  warrant  of  attachment  be 
vacated,  the  plaintiff  will  pay  to  the  said  defendant  all  costs  that  may 
be  awarded  to  him  and  all  damages  he  may  sustain  by  reason  of  the 
attachment,  not  exceeding  the  sum  of  dollars  [tivice  the 
amount  of  the  plaintiff's  demand].  And  that  if  the  plaintiff  recovers 
judgment  he  will  pay  to  the  defendant  all  money  received  by  him  from 
property  taken  by  virtue  of  the  warrant  of  attachment,  or  upon  any 
bond  given  therefor  over  and  above  the  amount  of  the  judgment  and 
interest  thereupon. 

In  witness  whereof,  we  have  hereunto  set  our  hands  the  day 

of  ,    190  . 

[Signature.] 
[Venue.]  ss.: 

,  being  duly  sworn,  doth  depose  and  say,  that  he  is  one 
of  the  above-named  sureties;   that  he  resides  at  No.  street, 

in  the  borough  of  ,  in  the  city  of  New  York,  and  is  a 

holder  therein  and  worth  dollars,  as  well  over  and  above 

all  claims,  undertakings,  liabilities  and  indebtedness,  as  over  and  above 
the  property  of  deponent  which  by  law  is  exempt  from  sale  by  execution. 

Sworn  to  before  me,  this  \ 

day  of  ,  190  .    \ 

[Signature.] 
[Venue.]  ss.: 

,  being  duly  sworn,  doth  depose  and  say,  that  he  is  one 
of  the  above-named  sureties;   that  he  resides  at  No.  street, 

in  the  borough  of  ,  in  the  city  of  New  York,  and  is  a 

holder  therein  and   worth  dollars,  as  well  over  and  above 

all  claims,  undertakings,  liabilities  and  indebtedness,  as  over  and  above 
the  property  of  deponent  which  by  law  is  exempt  from  sale  by  execution. 

Sworn  to  before  me,  this  ) 

day  of  ,  190  .    j 

[Signature.] 


494  Appendix  of  Forms. 

[Venue.]  ss.: 

On  the  day  of  ,  190  ,  before  me  personally  came 

,  to  me  known,  and  known  to  me  to  be  the  individuals 
described  in  and  who  executed  the  foregoing  undertaking,  and  who 
severally  acknowledged  that  they  executed  the  same. 

Notary  Public,  Co. 

I  hereby  approve  of  the  within  undertaking,  as  to  form,  and  as  to 
the  sufficiency  of  the  sureties,  and  let  a  warrant  of  attachment  issue. 
Dated  ,  190  .  Justice. 

NOTE. 

The  undertaking  must  be  in  at  least  double  the  value  of  the  property 
and  not  less  than  two  hundred  dollars.  Code  Civ.  Proc,  §§  2908,  3219, 
and  Municipal  Court  Act,  §  76. 


No.  19. 

Warrant  of  Attachment. 

(Municipal  Court  Act,   §   75.) 

[Venue.]  ss.: 

The  People  of  the  State  of  New  York,  to  any  Marshal  of  the  city  of 
New  York,  greeting: 

Whereas,  has   made    an    application   to    the    Municipal 

Court  of  the  city  of  New  York,  borough  of  ,  Ju- 

dicial District,  for  a  warrant  of  attachment  in  favor  against 

the  property  of  on  the  ground  of  ,  according  to  the 

provisions  of  the  Municipal  Court  Act  of  the  city  of  New  York,  for  a 
debt  of  dollars  and  cents,  being  the  amount  sworn  to  by 

the  applicant;  and  the  requisite  proof  by  affidavit,  and  an  undertaking 
with  sufficient  surety  having  been  made  and  executed:  You  are  there- 
fore required  to  attach  on  or  before  the  day  of  ,  190  , 
and  safely  keep  so  much  of  the  goods  and  chattels  not  by  law  exempt 
from  execution,  of  the  said  as  will  satisfy  the  plaintiff's 
demand  with  the  costs  and  expenses,  in  order  to  satisfy  any  judgment 
that  may  be  recovered  on  this  warrant  of  attachment.  And  do  you 
make  return  of  your  proceedings  hereon  to  the  said  court,  at  the  court- 
room, in  said  borough,  on  the  day  of  ,  190  ,  at 
o'clock  in  the  forenoon,  and  have  you  then  and  there  this  warrant. 

Given  under  my  hand   at  the  place  last 
aforesaid,  the        day  of  ,190 

Justice. 

NOTE. 

In  executing  this  process  the  marshal  will  observe  the  requirements 
of  §§  73-92  of  the  Municipal  Court  Act. 


*} 


Appendix  of  Forms.  495 

No.  20. 
Defendants'  Undertaking  for  Redelivery  of  Attached  Property. 

(Municipal  Court  Act,  §  84.) 
[Title  of  action.] 

Whereas,  the  property  of  the  above-named  defendant  has  been  at- 
tached in  this  action  by  one  of  the  marshals  of  the  city  of  New  York. 
Now  therefore  ,  the  said  defendant  as  principal,  and 

as  surety,  do  hereby  jointly  and  severally  undertake  to  the  said  plain- 
tiff pursuant  to  the  statute  in  such  case  made  and  provided  in  the  sum 
of  dollars   [twice  the  value  of  the  property  attached]   that 

if  judgment  is  rendered  against  the  defendant  and  an  execution  is 
issued  thereupon  within  six  months  after  the  giving  of  this  undertak- 
ing, the  property  attached  shall  be  produced  to  satisfy  the  execution. 

Dated  ,   190  . 

In  presence  of 

[Signature.'] 
[Venue.]  ss.: 

,  being  duly  sworn,  doth  depose  and  say  that  he  is  one 
of  the  above-named  sureties ;   that  he  resides  at  No.  street, 

in  the  borough  ,  in  the  city  of  New  York,  is  a  holder 

therein,  and  is  worth  dollars,  over  all  the  debts  and  lia- 

bilities which  he  owes  or  has  incurred,  and  exclusive  of  property  exempt 
by  law  from  levy  and  sale  under  an  execution. 

Sworn  to  before  me,  this  ) 

day  of  ,  190    j" 

[Signature.] 

[Venue.]  ss.: 

,  being  duly  sworn,  doth  depose  and  say  that  he  is  one 
of  the  above-named  sureties;   that  he  resides  at  No.  street, 

in  the  borough  ,  in  the  city  of  New  York,  is  a  holder 

therein,  and  worth  hundred  dollars,  over  all  the  debts  and 

liabilities  which  he  owes  or  has  incurred,  and  exclusive  of  property 
exempt  by  law  from  levy  and  sale  under  an  execution. 

Sworn  to  before  me,  this  } 

day  of  ,  190    [ 

[Signature.] 

[Venue.]  ss.: 

I  certify  that  on  this  day  of  ,  190  ,  before  me  per- 

sonally appeared  and  ,  known  to  me,  and  to  me 


49G  Appendix  of  Forms. 

known  to  be  the  individuals  described  in,  and  who  executed  the  within 
bond,  and  who  severally  acknowledged  that  they  executed  the'  same. 

[Signature  of  notary  public] 

I  hereby   approve  of  the  within  undertaking,  as  to   form  and   suffi- 
ciency. 

Dated  ,   190  .  [Justice,  or  marshal.] 

NOTE. 

If  more  than  one  surety,  the  undertaking  must  be  joint  and  several 
in  form.      Code  Civ.  Proc,  §  812. 

Inventory  of  Property  Attached. 
By  virtue  of  the  within  warrant  of  attachment  I  did,  at  the  borough 
of  ,    in   the   city   of   New   York,    on   the  day   of 

,    190  ,    attach   and   take   into   my   custody   the   following 
goods  and  chattels  of  the  within-named  defendant,  to  wit: 
That  I  made  an  inventory  of  the  property  so  seized  and  attached,  on 
the  day  of  ,  190  . 

Marshal. 

No.  21. 

Bond  for  Delivery  of  Attached  Property  to  Third  Person. 

(Municipal  Court  Act,  §  85.) 

Know  all  men  by  these  presents,  that  we,  and  , 

are  held  and  firmly  bound  unto  in  the  sum  of   [double  the 

value  of  the  property  claimed],  to  be  paid  to  the  said 

,  for  which  payment  well  and  truly  to  be  made,  we  do 
jointly  and   severally  bind  ourselves,  our  heirs,  executors,  and  admin- 
istrators, firmly  by  these  presents.      Sealed  with  our  seals. 
Dated   the  day  of  ,    190  . 

Whereas,  certain  goods  and  chattels,  to  wit  [naming  the  attached 
property  claimed]  :    were  on  the  day  of  ,   190  ,  seized 

by  one  of  the  marshals  of  the  city  of  New  York,  by  virtue  of  a  warrant 
of  attachment  issued  by  the  Municipal  Court  of  the  city  of  New  York, 
borough  of  ,  District,  in  favor  of  the  above-named 

and  against  ;  and  whereas  the  above-bounden 

claims  the  said  goods  and  chattels  as  his  property ;  and 
the  same  have  not  been  reclaimed  by  the  defendant,  by  virtue  of  the 
provisions  of  the  Municipal  Court  Act  of  the  city  of  New  York. 

Now  therefore  the  condition  of  this  obligation  is  such  that  if,  in  an 
action  upon  this  bond,  commenced  within  three  months  hereafter,  the 
said  claimant  will  establish  that  he  was  the  general  owner  of  the  prop- 
erty claimed,  at  the  time  of  the  seizure ;  or  if  he  fails  so  to  do,  that  he 
will  pay  to  the  said  the  value  thereof,  with  interest,  then 

this  obligation  to  be  void,  otherwise  to  remain  in  full  force  and  virtue. 

[Signatures.]         [r,.  s.] 
[l.  s.] 


Appendix  of  Fokms.  497 


Add  acknowledgment,  justification,  and  approval.  The  claimant  must 
execute  the  bond;  one  surety  suffices.  The  marshal  or  justice  may 
approve  in  at  least  twice  the  value  of  the  property  claimed.  Municipal 
Court  Act,  §  85. 


No.  22. 
Marshal's  Return  of  Proceedings   on  Warrant  of  Attachment   Served 

Personally. 
[Venue.]  ss.: 

By  virtue  of  the  within  warrant  of  attachment,  I  did,  on  the 
day  of  ,  190  ,  at  ,  in  the  said  borough,  in  the 

city  of  New  York,  attach  and  take  into  my  custody  the  following-de- 
scribed goods  and  chattels  of  the  defendant,  and  immediately  made  an 
inventory  thereof,  of  which  I  certify  the  annexed  to  be  a  correct  copy; 
and  immediately  thereafter  I  served  the  within  summons,  attachment, 
and  inventory  personally  on  *  by  delivering  to  him  person- 

ally copies  thereof. 

[Date.]  [Marshal's  signature.] 

Same,  copies  left  at  defendant's  residence. 

[To  the  *  as  above,  then  add]  by  leaving  copies  thereof,  certified  by 
me  to  be  such,  at  the  said  defendant's  last  place  of  residence  at 

,  in  the  said  borough,  in  the  city  of  New  York,  with 
[or,  if  his  name  is  not  known,  "  with  a  man,  aged  apparently 
years,"   etc.,  describing  him],  a  person  of  suitable  age  and  discretion. 
And  I  further  certify  that  said  defendant   could  not,  with  reasonable 
diligence,  be  found  within  said  county. 

[Date.]  [Marshal's  signature.] 

Same,  by  posting  copies  on  door  of  residence. 

[To  the  *  as  above,  then  add]  by  posting  copies  thereof,  certified  by 
me  to  be  such,  on  the  outer  door  of  the  said  last  place  of 

residence  at  ,  in  said  borough,  in  the  city  of  New  York, 

and  also  depositing  like  certified  copies  thereof  in  the  general  post 
office  inclosed  in  a  sealed  postpaid  wrapper,  directed  to  the 

said  at  ,  that  being  his  residence.     And  I 

further  certify  that  said  defendant  could  not,  with  reasonable  diligence, 
be  found  within  the  said  borough,  and  that  a  person  of  suitable  age  and 
discretion  could  not  be  found  at  the  defendant's  said  last  place  of  resi- 
dence therein. 

[Date.]  [Marshal's  signature.] 

32 


498  Appendix  of  Forms. 

Same,  where  defendant  has  no  residence  in  the  boroughs. 

[To  the  *  as  above,  then  add]  by  delivering  copies  thereof,  certified 
by  me  to  be  such,  to  ,  the  person  in  whose  possession  the 

property  attached  was  found.     And   I   further  certify   that  said 

could  not,   with   reasonable   diligence,   be  found   within   the  said 
boroughs,  in  the  city  of  New  York,  and  has  no  place  of  residence  therein. 

[Date.]  [Marshals  signature.] 

NOTE. 

If  the  marshal  delivers  the  attached  property  to  the  defendant,  upon 
receipt  of  an  undertaking,  or  to  a  third  person  upon  receipt  of  a  bond, 
that  fact  should  be  stated  in  the  return  fully. 


No.  23. 
Order  Vacating  Warrant  of  Attachment. 

[Title  of  action.] 

The  defendant  having  made  application  to  this  court,  upon  the  return 
of  the  summons  issued  in  the  above-entitled  action,  to  vacate  [or, 
"  modify,"  or  "  increase  the  plaintiff's  security  given  upon  "]  the  war- 
rant of  attachment  herein,  upon  the  papers  upon  which  the  said  warrant 
was  granted   (arid  "  upon  the  affidavits  of  ,")    [omit  the  clause 

in  parentheses,  if  the  defendant  presents  no  proofs] ; 

Now,  upon  hearing  the  respective  parties  [add,  unless  the  motion  was 
heard  upon  plaintiff's  papers  only]  "  and  upon  reading  and  filing  the 
affidavits  of "  [here  state  the  names  of  the  persons  making  affidavits 
and  used  by  the  plaintiff  and  defendant  on  the  motion] ; 

Ordered,  that  the  said  warrant  of  attachment  be  and  the  same  is 
hereby  vacated  [or  "  modified,"  stating  how]  ;  or,  ordered 

that   the   plaintiff's   security  be   increased   to   the   sum  of 
dollars,  and  that  upon  failure  of  the  plaintiff  forthwith  to  so  increase 
his  security,  the  said  warrant  of  attachment  be  vacated. 

[Date.]  [Justice's  signature.] 

NOTE. 

The  court  may,  on  its  own  motion,  if  it  deems  the  papers,  upon 
which  it  was  granted,  insufficient  to  authorize  it,  vacate  the  warrant  of 
attachment.  In  such  case,  the  court,  in  place  of  the  first  two  sen- 
tences, should  state  its  reasons  for  so  doing.   Municipal  Court  Act,  §  89. 


Appendix  of  Forms.  499 

No.  24. 

Execution  against   Property  Taken  by  Attachment. 

(Code  Civ.  Proc,  §  2918,  and  Municipal  Court  Act,  §  91.) 

The  People  of  the  State  of  New  York,,  to  any  marshal  of  the  city  of 
New  York,  greeting: 

Whereas,    judgment  was   rendered   on   the  day   of  , 

190  ,  by  the  Municipal   Court  of   the   city  of  New   York,   Borough   of 
,  Judicial  District,  in  an  action   in  said  court,   be- 

tween ,   plaintiff,  and  ,   defendant,   in   favor 

of   said   plaintiff,  ,   against    the    said    defendant, 

for  the  sum  of  dollars. 

And    whereas,    the    sum    of  dollars   is   now   actually   due 

thereon ; 

Therefore  we  command  you,  that  you  satisfy  the  said  judgment  by 
collecting  the  amount  due  thereon,  together  with  your  fees  out  of  the 
personal  property  of  the  said  defendant,  attached  by  you  by  virtue  of 
the  warrant  of  attachment  issued  in  said  action,  and  pay  the  same  to- 
the  party  entitled  thereto;  and  return  this  execution  within  twenty 
days  after  its  receipt  by  you,  to  the  said  court,  Borough  of  r 

Judicial  District,  with  a  certificate  thereon  indorsed,  stating  the 
manner  in  which  you  have  executed  the  same. 

Witness,  Hon.  ,  justice  of  said  court,  at  the  borough  of 

,  the  day  of  ,  190  . 

Clerk. 


No.  25. 
Affidavit  in  an  Action  to  Recover  a  Chattel. 
(Code  Civ.  Proc,  §  1695,  and  Municipal  Court  Act,  §§  95-131.) 
[Title  of  action.] 
State  of  New  York,  Borough 
of 

,   plaintiff   in  this  action,  being  duly   sworn,   says  that 
,  the  owner  of  the   following-described  chattel,  that  is  to- 
say: 

That  the  said  chattel  wrongfully  detained  from  the  plain- 

tiff by  ,  the  defendant  herein. 

That  the  alleged  cause  of  the  detention  thereof,  according  to  the  best 
knowledge,  information,  and  belief  of  deponent,  is  as  follows: 

That  the  said  chattel  ha  not  been  taken  by  virtue  of  a  warrant 
against  the  plaintiff  for  the  collection  of  a  tax.  assessment,  or  fine 
issued  in  pursuance  of  a  statute  of  this  State  or  of  the  United  States. 


500  Appendix  of  Forms. 

That  said  chattel  ha  not  been  seized  by  virtue  of  an  execution  or 
warrant  of  attachment  against  the  property  of  the  plaintiff  or  of  any 
person  from  or  through  whom  the  plaintiff  has  derived  title  to  said 
chattel  since  the  seizure  thereof.  [No  previous  application  as  in  Form 
No.  6.] 

That  the  actual  value  of  said  chattel  is 

Sworn  to  before  me,  this  ) 

day  of  ,  190  .  j" 

[Signature.] 

To  any  marshal  of  the  city  of  New  York,  to  ichom  the  summons  in  this 
action  is  delivered,  greeting: 
You  are  hereby  required  to  replevy  the  chattel  described  in  the  within 
affidavit,  on  or  before  the  day  of  ,  190  . 

[Justice.] 
[Attorney  for  plaintiff.] 
NOTE. 
Where  the  affidavit  is  made  by  the  attorney,  and  all  the  material  facts 
are  not  within  his  personal  knowledge,  substitute  the  following: 

7.  That  all  the  above  allegations  [or,  if  portions  thereof  are  made 
upon  information  and  belief,  state  what  portions  are  so  made]  are  made 
upon  information  and  belief;  that  the  grounds  of  deponent's  belief  are 
[here  state  such  grounds].,  and  that  the  reason  why  this  affidavit  is  not 
made  by  the  plaintiff  is  that  he  is  not  within  the  borough  of  deponent's 
residence  or  "  office,"  or  "  that  he  is  not  capable  of  making  this  affidavit 
because  [give  reason]. 


No.  26. 
Complaint  in  Action  to  Recover  a  Chattel. 

[Title  of  action.] 
[Venue.]  ss.: 

The  complaint  of  the  above-named  plaintiff  respectfully  shows  to  this 
court,  that  the  defendant  ha  become  possessed  of,  and  wrongfully  de- 
tains from  the  plaintiff,  the  following  chattels  of  the  plaintiff,  that  is 
to  say:  of  the  value  of  ,  as  he  believes,  and  that 

said  chattels  have  been  demanded  by  the  plaintiff     from  the  defendant 
before  the  commencement  of  this  action. 

Wherefore   the  plaintiff     demand     that  the   defendant     may  be  ad- 
judged to  deliver  to  the  plaintiff     the  said  goo'ls  and  chattels,  and  to 
pay   the   plaintiff   damages   for   the   detention   thereof,   to   the   sum    of 
,   and   that   the   same   may  be  forthwith   delivered  to  the 
plaintiff, 

[Plaintiff's  attorney.] 


Appendix  of  Forms.  501 

[Venue.]  ss.: 

,  plaintiff  in  this  action,  being  duly  sworn,  says  that 
the  foregoing  complaint  is  true  to  his  own  knowledge,  except  as  to  the 
matters  which  are  therein  stated  to  be  alleged  upon  information  and 
belief,  and  as  to  those  matters  he  believes  it  to  be  true. 

Sworn  to  before  me,  this  ) 

day  of  ,  190  .  j 

{Signature.] 

NOTE. 

As  to  form  and  requisites  of  complaint  against  marshal  for  refusing 
to  receive  bond  and  deliver  goods,  see  Kamena  v.  Wanner,  6  Abb.  193, 
6  Duer,  698. 


No.  27. 
Plaintiff's  Undertaking  in  an  Action  to  Recover  a  Chattel. 
(Code  Civ.  Proc,  §  1699;  Municipal  Court  Act,  §§  90,  99.) 

[Title  of  action.] 

Whereas,  ,  the  above-named  plaintiff  ,  has  made  an  affi- 

davit that  the  above-named  defendant  wrongfully  detain  certain  chat- 
tel in  the  said  affidavit  described  of  the  value  of  ,  and  the 
said  plaintiff  claim  the  immediate  delivery  of  said  chattel  pursuant 
to  the  provisions  of  the  statutes  of  the  State  of  New  York  in  such  case 
made  and   provided; 

Now  therefore,  and  in  consideration  of  the  taking  of  said  property, 
or  any  part  thereof,  by  one  of  the  marshals  of  the  city  of  New 
York,  by  virtue  of  the  said  affidavit  and  the  requisition  thereupon 
indorsed,    we,  ,    of  ,    of  ,    of 

,  do,  pursuant  to  said  statute,  hereby  jointly  and  severally  under- 
take and  become  bound  to  the  defendant  in  the  sum  of 
for  the  prosecution  of  the  action  of  the  said  plaintiff  against  the  said 
defendant  in  said  court  for  wrongfully  detaining  said  property,  the 
return  to  the  defendant  of  the  said  chattel  ,  or  so  much  thereof  as 
shall  be  taken  by  virtue  of  the  said  affidavit  and  requisition  thereupon 
indorsed,  if  possession  thereof  is  adjudged  to  him,  or  if  the  action 
abates  or  is  discontinued  before  the  chattel  returned  to  defend- 

ant ;  and  for  the  payment  to  said  defendant  of  any  sum  which  the 
judgment  awards  to  him  against  the  plaintiff  . 

In  witness  whereof,  we  have  hereunto  set  our  hands,  the  day  of 

,  190  . 

Signed  and  delivered  in  presence  of  [Signatures.] 


502  Appendix  of  Fokms. 

[Venue.]  ss.: 

,  being  duly  sworn,  doth  depose  and  say,  that  he  is 
one  of  the  sureties  to  the  foregoing  undertaking;  that  he  is  a  resident 
and  holder  within  this  State,  and  is  worth  the  sum  of 

dollars  [twice  the  amount  specified  in  the  undertaking]  over  all  his 
debts  and  liabilities  hi  owes  or  has  incurred,  and  exclusive  of  property 
exempt  by  law  from  levy  and  sale  under  an  execution. 

Sworn  to  before  me,  this  ) 

day  of  ,   190  .   j 

[Signature.] 

[Venue.]  ss.: 

,  being  duly  sworn,  doth  depose  and  say,  that  he  is 
one  of  the  sureties  to  the  foregoing  undertaking;  that  he  is  a  resident 
and  holder  within  this  State,  and  is  worth  the  sum  of 

dollars  [twice  the  amount  specified  in  the  undertaking]  over  all  his 
debts  and  liabilities  which  he  owes  or  has  incurred,  and  exclusive  of 
property  exempt  by  law  from  levy  and  sale  under  an  execution. 

Sworn  to  before  me,  this  ) 

day  of  ,  190  .  J 

[Signature.] 

[  Venue.  ]  ss. : 

I  certify  that  on  this  day  of  ,  190  ,  before  me  per- 

sonally came  the  above-named  ,  to  me  known,  and  known 

to  me  to  be  the  individuals  described  in  and  who  executed  the  above 
undertaking,  and  severally  acknowledged  to  me  that  they  executed  the 

same. 

[Signature.] 

I  approve  the  within  undertaking  as  to  form  and  the  sufficiency  of 
the  sureties  therein. 

Dated  ,  190  .  Justice. 

NOTE. 
The  undertaking  must  be  approved  by  the  justice   (Municipal  Court 
Act,  §  99),  and  the  undertaking  must  be  executed  by  at  least  two  sure- 
ties, of  which  the  plaintiff  may  be  one,  in  a  sum  not  less  than  twice  the 
value  of  the  property  claimed.     Code  Civ.  Proc,  §§  1699,  2920,  811,  812. 


Appendix  of  Forms.  503 

No.  28. 
Marshal's  Return  in  Proceedings  to  Replevy. 

By  virtue  of  the  annexed  affidavit  and  requisition  thereon  indorsed,  I 
did,  on  the  day  of  ,  190  ,  replevy  the  following  prop- 

erty, described  in  the  said  affidavit  [describing  the  property  as  described 
in  the  affidavit],  which  I  found  in  the  possession  of  the  defendant  [or, 
"  the  defendant's  agent  "].  [Here  state  the  fact  and  the  mode  of  service 
of  the  summons,  affidavit,  and  requisition,  as  in  attachment  cases;  also 
state  what  disposition  has  been  made  of  the  chattels,  pursuant  to  the 
provisions  of  Municipal  Court  Act,  §§   102,   103,  104,   105.] 

[Date.]  [Marshal's  signature.] 


No.  29. 
Notice  by  Defendant  Excepting  to  Plaintiff's  Sureties. 

{Title  of  action.] 

Take  notice  that  ,  the  above-named  defendant,  except  to  the 

plaintiff's  sureties  in  the  undertaking  given  by  him  in  this  action. 

[Date.]  [Defendant's  signature.] 

To   [plaintiff  or  marshal]. 

NOTE. 

The  sureties  must  justify  before  the  justice,  on  the  return  of  the 
summons.     Municipal  Court  Act,  §§   106,  107. 


No.  30. 
Notice  by  Defendant  to  Reclaim  Chattel. 

[Title  of  action.] 

Sir. —  Take  notice  that  require  the  return  of  the  chattel 

replevied  in  the  above-entitled  action. 

[Date.]  [Defendant's  signature.] 

To  ,  Esq.,  Justice. 

NOTE. 

If  the  defendant  demands  the  return  of  a  part  of  the  chattels  re- 
plevied, in  a  case  prescribed  in  the  last  sentence  of  Code  Civ.  Proc, 
§  2925,  the  notice  should  describe  the  chattel  demanded  as  described  in 
the  affidavit  of  the  plaintiff. 


504  ArPENDix  of  Forms. 

No.  31. 
Affidavit  Thereon. 
[Title  of  action.] 
[Venue.]  ss.: 

,  being  duly  sworn,  deposes  and  says: 
1.  That  the  above-named  defendant  is  the  owner  of  the  chattel  de- 
scribed in  the  annexed  notice. 

or,  1.  That  the  above-named  defendant  is  lawfully  entitled  to  the  pos- 
session of  the  chattel  described  in  the  annexed  notice,  by  virtue  of  a 
special  property  therein,  to- wit:  [Here  set  forth  the  facts  with  respect 
to  the  special  property.] 

[Jurat.]  [Defendant's  signature.] 


No.  32. 

Undertaking  Thereon. 

(Code  Civ.  Proc,  §  1104;  Municipal  Court  Act,  §  107.) 

[Title  of  action.] 

Whereas,  the  defendant  in  the  above-entitled  action  demands  the  re- 
turn of  the  chattel  [or,  "  demands  the  return  of  the  following  chattels," 
describing  them]  replevied  by  the  above-named  plaintiff,  the  value  of 
which,  as  stated  in  said  plaintiff's  affidavit,  is  [here  state  such  value] : 

Now  therefore,  we,  the  undersigned,  for  the  procuring  of  such  return, 
and  in  consideration  thereof,  do  jointly  and  severally  undertake,  and 
become  bound  in  the  sum  of  not  less  than  [twice  the  value  above  stated], 
for  the  delivery  of  said  chattel  to  the  plaintiff,  if  delivery  thereof  is 
adjudged ;  or  if  the  action  abates  in  consequence  of  the  defendant's 
death  and  for  the  payment  to  the  plaintiff  of  any  sum  which  the  judg- 
ment awards  against  the  defendant. 

[Date.]  [Signatures.] 

[Add  acknowledgment,  justification,  and  approval  by  justice.  Two 
sureties  are  required;  the  defendant  need  not  join.  The  sureties  must 
justify  before  the  justice.     Municipal  Court  Act,  §§  106,  109. 


No.  33. 
Examination  of  Plaintiff's  or  Defendant's  Sureties. 

[Title  of  action.] 

On  this  day  of  ,  190  ,  before  the  undersigned,  a  jus- 

tice of  the  Municipal  Court  of  the  city  of  New  York,  borough  of  the 
Judicial  District,  personally  appeared  and  , 

the  sureties  of  the   plaintiff   [or  "  defendant "]   in  the  annexed  under- 


Appendix  of  Fokms.  505 

taking,   to   justify    pursuant    to  section    106   of   the   Municipal    Court 
Act,  and  the  said  surety,  being  duly  sworn  [here  state 

testimony  taken],  and  the  said  ,  surety,  being  duly  sworn, 

says  [etc.,  as  above]. 

[Signatures  of  sureties.] 
Sworn  to  before  me,  the  day  ) 
first  above  written.        j 
Justice. 


No.  34. 
Allowance  Thereon. 

This  day  appeared  before  me  the  within-named  ,  and 

,  sureties  to  the  within  undertaking,  and  justified  as  upon 
such  an  examination  a<s  required  by  law;  and  I  find  said  sureties  to  be 
sufficient,  and  allow  the  same. 

[Date.]  Justice. 

[To  be  indorsed  on  the  undertaking.] 


No.  35. 

Affidavit  by  Third  Person  for  Delivery  of  Chattel  to  Him. 

[Title  of  action.] 
[Venue.]  St.: 

,  being  duly  sworn,  deposes  and  says  that 
was  entitled,  as  against  the  defendant,  to  the  possession  of  the  chattel 
[describing  it]  replevied  in  the  above-entitled  action,  at  the  time  the 
same  was  so  replevied,  and  now  makes  such  claim;  and  that  the  facts 
upon  which  such  right  depends  are  as  follows:  [Here  state  such  facts.] 
[No  previous  application,  etc.,  as  in  Form  No.  6.] 

[Jurat.]  [Signature.] 


No.  36. 
Marshal's  Notice  to  Plaintiff  of  Third  Person's  Claim. 

[Title  of  action.] 

Take  notice  that  claims  the  property  replevied  by  me  in 

this  action  [or  "  claims  the  following  property  replevied  by  me  in  this 
action  "]  ;  that  he  has  served  upon  me  an  affidavit,  of  which  a  copy  is 
herewith  served  upon  you;  and  that  I  require  indemnity  against  such 
claim.  [Marshal's  signature.] 

To  [plaintiff's  attorney,  toho  appears  for  him  before  the  court.] 


506  Appendix  of  Forms. 

No.  37. 

Plaintiff's  Undertaking  to  Indemnify  Marshal  against  Such  Claim. 

(Code  Civ.  Proc,  §  1711;   Municipal  Court  Act,  §   115.) 

[  Title  of  action.] 

Whereas,  the  following  property  [describing  it]  has  been  replevied 
in  this  action,  and  is  now  held  by  ,  one  of  the  marshals  of 

the  city   of   New  York,   and  one  claims   to   have   the 

right  to  the  possession  thereof,  and  has  delivered  to  the  said  marshal  an 
affidavit,  as  required  by  law;  and  whereas  the  said  marshal  has  served 
upon  the  said  plaintiff  a  copy  of  the  said  affidavit,  and  a  notice  that  he 
requires  indemnity  against  the   said  claim; 

Xow  therefore,  we.  the  undersigned,  do  hereby  jointly  and  severally 
undertake  pursuant  to  the  statute,  to  the   said  ,  marshal, 

that  he  Will  indemnify  him  against  any  liability  for  damages,  costs,  or 
expenses  to  be  incurred  in  an  action  brought  against  him  by  the  said 
claimant,  or  any  person  deriving  title  from  or  through  the  claimant,  by 
reason  of  the  taking  or  detention  of  the  said  chattel,  or  its  delivery  to 
the  plaintiff,  not  exceeding  the  sum  of  dollars. 

[Date.]  [Signatures.] 


Add  acknowledgment,  justification,  and  approval  by  marshal.  In  the 
justification  the  sureties  must  swear  that  they  are  freeholders  or  house- 
holders in  the  city  of  New  York.  The  undertaking  must  be  executed  by 
two  sureties ;  the  plaintiff  need  not  join.  If  the  marshal  does  not  ap- 
prove the  undertaking  and  requires  the  sureties  to  be  examined,  such 
examination  must  be  before  the  court  out  of  which  the  proceedings 
issued.  As  to  amount,  see  Municipal  Court  Act,  §  115;  also  Code  Civ. 
Proc,  §  1711. 


No.  38. 

Execution  on  a  Judgment  Awarding  the  Recovery  of  a  Chattel. 

(Municipal  Court  Act,  §   124;   Code  Civ.  Proc,  §   1373.) 

The  People  of  the  State  of  New  York,  to  any  marshal  of  the  city  of 
New  York,  greeting: 

Whereas,    judgment    was    rendered   on   the  day    of  , 

190  ,   by  the   Municipal   Court  of  the  city   of   New   York,   borough   of 

,  Judicial  District,  in  an  action  in  said  court  between 

,    plaintiff  ,    and  ,    defendant  , 

in  favor  of  the  said  plaintiff  ,  against  the  said  defendant  , 


Appendix  of  Forms.  507 

Therefore   we   command  you   that  you   deliver  the   possession   of   the 
chattel     above  described  to  the  said  ,  he  being  the  part    to  whom 

the  judgment  awards  the  possession  thereof,  if  the  same  can  be  found 
within  the  city  of  New  York;  and  in  case  a  delivery  of  said  chattel  can- 
not be  had,  you  are  required  to  satisfy  the  amount  adjudged  by  said 
judgment,  as  the  value  thereof,  to-wit:   the  sum  of  dollars 

and  interest  thereon,  and  also,  in  either  case,  to  satisfy  the  moneys 
awarded  by  said  judgment  as  damages  and  costs,  to-wit:  the  sum  of 
dollars  and  interest  thereon,  together  with  your  fees,  out 
of  the  personal  property  of  the  said  judgment  debtor  within  the  city  of 
New  York,  not  exempt  from  levy  and  sale  by  virtue  of  an  execution,  and 
to  pay  the  same  to  the  party  entitled  thereto,  and  return  this  execution 
within  twenty  days  after  its  receipt  by  you,  to  the  said  Municipal  Court 
of  the  city  of  New  York,  Borough  of  ,         Judicial   District, 

with  a  certificate  thereon  indorsed,  stating  the  manner  in  which  you 
have  executed  the  same. 

Witness,  Hon.  ,  justice  of  said  court,  at  the  borough  of 

,  the  day  of  ,  190  . 

Clerk. 


No.  39. 


Notice  of  Motion  to   Set  Aside  Plaintiff's  Proceedings  on  Ground  of 

Irregularity. 

Sir. —  Take  notice  that  upon  the  [move  on  all  papers  served  and  on 
pleading  and  proceedings],  a  motion  will  be  made  before  [whatever 
court  and  where  and  when],  that  the  affidavit  made  by  the  plaintiff  in 
this  action  and  the  requisition  to  any  marshal  of  the  city  of  New 
York,  indorsed  therein,  and  all  proceedings  taken  by  the  plaintiff  or  by 
the  said  marshal  by  virtue  thereof,  respectively,  may  be  set  aside  as  void 
and  irregular  for  that,  etc.  [specify  irregularities  complained  of]  ;  and 
that  the  property  taken  by  the  said  marshal  under  the  said  affidavit  and 
requisition,  respectively,  may  be  restored  by  him  to  the  said  defendant, 
and  that  the  plaintiff  may  be  ordered  to  pay  the  costs  of  this  motion, 
and  [for  usual  prayer  for  relief]. 

[If  any  affidavit  be  necessary  to  show  irregularities  extraneous  to  the 
papers,  serve  copy  with  notice,  and  state  as  to  previous  applications  as" 
to  Form  No.  6.] 

[If  the  proceeding  be  by  an  order  to  show  cause,  alter  form  accord- 
ingly, and  insert  the  words  "  service  less  than  eight  days  sufficient."] 


508  Appendix  or  Forms. 

No.  40. 
Answer  of  Title  to  Real  Property. 
(Municipal  Court  Act,  §   179.) 
[Title  of  action.] 

The  defendant,  for  an  answer  to  the  plaintiff's  complaint  in  this  action, 
denies  each  allegation  of  the  complaint;  and  he  alleges  the  following 
facts,  showing  that  the  title  to  real  property  will  come  in  question, 
to-wit:  that  the  land  upon  which  the  alleged  trespass  was  committed, 
is  the  land  of  the  defendant  [or  othertvise,  as  the  case  may  be]. 

[Signature  of  defendant,  his  agent,  or  attorney.] 
[Countersigned  by  justice.] 
I  hereby  countersign  the  within  answer,  this  day  of  , 

190  .  ,  Justice. 


No.  41. 

Undertaking  Thereon. 

(Municipal  Court  Act,  §   116.) 
[Title  of  action.] 

Whereas,  the  defendant  in  the  above-entitled  action  has  [or  "  is  about 
to  "]  set  forth  in  his  answer  facts,  showing  that  the  title  to  real  prop- 
erty will  come  in  question  in  said  action : 

Now  therefore,  we,  the  undersigned,  do  jointly  and  severally  under- 
take, pursuant  to  the  statute,  that  if  the  plaintiff,  within  twenty  days 
from  the  day  of  ,   190      [day  of  putting  in  ansiver], 

deposit  with  the  justice  a  summons  and  complaint  in  a  new  action,  for 
the  same  cause,  to  be  brought  in  the  Supreme  Court  of  New  York,  the 
defendant  will,  within  twenty  days  after  the  deposit,  give  a  written 
admission  of  the  service  thereof.  [If  the  defendant  teas  arrested,  add: 
"  and  that  the  defendant  will  at  all  times  render  himself  amenable  to 
any  mandate,  which  may  be  issued  to  enforce  a  final  judgment,  in  the 
action  so  to  be  brought."] 

[Date.]  [Signatures.] 

[Add  acknowledgment,  justification,  and  approval  by  justice.  One 
surety  suffices;  defendant  need  not  join.] 


Appendix  of  Forms.  509 

No.  42. 
Notice  of  Motion. 

(With  or  without  stay  of  proceedings.) 
[Title  of  action.] 

Sir. — Take  notice  that  upon  the  [describe  the  papers  on  which  the 
motion  is  made],  a  motion  will  be  made  before  [whatever  court,  and 
where  and  when],  for  an  order  [here  state  nature  of  order  or  relief 
applied  for]. 

If  for  ivregularities,  state  in  full  the  irregularities  complained  of. 
See  Supreme  Court  Rules. 

[If  stay  of  proceedings  is  desired,  then  add]  And  in  the  meantime, 
and  until  the  hearing  and  decision  of  this  motion  [or  until  the  further 
order  of  this  court],  let  all  proceedings  of  the  plaintiff  [or  the  defend- 
ant], his  attorneys,  agents,  or  servants,  and  any  marshal  of  the  city  of 
New  York,  be  stayed. 

Dated,  etc.  [Signature  of  attorney.] 

[Justice's  signature,  if  on  order  to  show  cause.] 

NOTE. 

In  drawing  order  made  by  the  justice  [whether  relief  demanded  is 
made  or  denied],  make  it  correspond  precisely  with  the  relief  demanded, 
or  vice  versa.  If  the  proceedings  be  by  an  order  to  show  cause,  alter 
accordingly,  and  state  as  to  previous  application  as  to  Form  No.  6. 


No.  43. 
Order  to  Show  Cause. 

[Title  of  action.] 

On  the  affidavit  of  ,  verified  on  the  day  of  , 

190  ,  which  is  hereto  annexed,  and  on  all  the  papers  and  proceedings 
in  the  above-entitled  action,   it   is  hereby  ordered,   that  the   plaintiff 
show     cause     before     the     Municipal     Court     of     the     city     of     New 
York,    borough     of  ,  Judicial     District,     at     the 

courtroom    thereof,    No.  .,    in    said    borough    of    the    city 

of  New  York,  on  ,  the  day  of  ,  190  ,  at 

o'clock  in  the  forenoon,  or  as  soon  thereafter,  as  counsel  can  be 
heard,  why  the  judgment  heretofore  rendered  in  said  action  by  default, 
on  the  day  of  ,  190  ,  and  fully  described  and  set  forth 

in  said  affidavit,  should  not  be  opened,  vacated,  and  set  aside,  and  said 
defendant  allowed  to  come  in  and  defend  said  action,  and  why  said  de- 
fendant should  not  have  such  other  and  further  relief  as  to  the  court 
may  seem  meet  and  just  and  until  further  order  or  determination  herein, 
let  all  proceedings  on  the  part  of  the  plaintiff  or  any  marshal  of  the 


510  Appendix  of  Forms. 

city  of  New  York,  upon  said  judgment,  or  toward  the  collection  or  en- 
forcement thereof,  be  and  the  same  are  hereby  stayed. 

And,  it  appearing  that  there  is  a  suflicient  reason  for  requiring  a 
shorter  notice  than  eight  days,  service  of  this  order  may  be  made  on  or 
before  the  day  of  ,  190  . 

Dated  ,  190  .  Justice. 


No.  44. 
Affidavit  to  Obtain  Adjournment  of  Trial. 

(See  §    193,  Municipal   Court  Act.) 
[Title  of  action.] 
[Venue.]  ss.: 

,  being  duly  sworn,  deposes  and  says,  that  he  is  the 
in  this  action;   that  issue  was  joined  herein   on  the  day  of 

,  190    ;  that  deponent  has  fully  and  fairly  stated  the  case  herein 
to  ,    his   counsel,   who   resides  ,    in   the   borough   of 

,  in  the  city  of  New  York ;  and  that  deponent  has  a  good  and 
substantial  defense  to  said  action,  on  the  merits,  as  he  is  advised  by  said 
counsel,  after  such  statement,  and  verily  believes  to  be  true ;  that  he 
has  stated  to  his  counsel  what  he  expects  and  believes  he  will  be  able 
to   prove  on  the   trial   hereof   by  ,   who  is   a   material   and 

necessary  witness  for  deponent  thereon,  and  that  without  the  testimony 
of   said  ,   deponent   cannot   safely   proceed   to   trial,    as   he, 

deponent,  is  advised  by  his  said  counsel,  and  verily  believes.  That  this 
action  is  brought  to  recover  [here  state  the  nature  of  the  action  and 
defense,  and  show  the  materiality  of  the  evidence]. 

That  deponent  has  made  diligent  efforts  to  find  said  witness,  and 
could  not.     That  on  the  day  of  ,   190  ,  deponent  pro- 

cured a  subpoena  for  him,  for  the  purpose  of  procuring  the  attendance 
of  said  witness  at  this  court  this  day,  and  that  said  subpoena  was  not 
served,  for  the  reason  that  after  a  vigilant  search  and  inquiry  for  said 
witness  at  his  residence  and  place  of  business  it  was  ascertained  that 
he  had  left  the  borough  of  ,  in  said  city,  expecting  to  return 

on  the  day  of  ,  190  ,  at  which  time,  and  not  sooner, 

deponent  believes  he  will  be  able  to  procure  his  attendance  as  such  wit- 
ness herein. 

Sworn  to,  etc.  ,  [Signature.] 

NOTE. 

[This  affidavit  should  be  varied  according  to  circumstances,  and  the 
nature  and  materiality  of  the  evidence  sometimes  should  appear,  so- 
that  the  justice  may  determine  whether  the  witness  is  really  material 
or  not,  and  to  enable  the  other  side  to  say  whether  they  will  admit 
what  is  expected  to  be  proved  by  the  absent  witness,  and  in  that  way 
render  the  adjournment  unnecessary.] 


Appendix  of  Forms.  511 

No.  45. 
Undertaking  on  Long  Adjournment. 

(Municipal  Court  Act,  §  194.) 
[Title  of  action.] 
Whereas,  issue  has  been  joined  in  this  action,  and  the  above-named 
has  applied  for  an  adjournment  under  section  194  of  the 
Municipal  Court  Act  (Laws  1902,  chap.  580).     Now,  we,  ,  of 

street,  and  ,  of  street,  of  the  bor- 

ough of  ,  in  the  city  of  New  York,  do  undertake  and  agree 

that  we  will  pay  to  the  in  this  action  the  damages,  costs, 

and  extra  costs,  in   case  judgment  shall  be   rendered  against  the   said 
in  this  action. 
Dated  the        day  of  ,  190  . 

[Signature.] 
[Affidavits  and  acknowledgments  as  before.] 

COMMISSIONS. 

[Commissions  issued  in  this  court  in  forms  similar  to  those  issuing 
out  of  courts  of  record.  Blanks  for  the  same,  icith  directions  for  their 
return,  and  instructions  to  the  commissioners,  may  be  procured  at  the 
stationers'.     They  are  too  lengthy  for  insertion  here.] 


No.  46. 
Subpoena  to  Testify. 
(Municipal  Court  Act,  §   196.) 
The  People  of  the  State  of  New  York,  to  ,  greeting: 

We  command  you,  that  all  business  and  excuses  being  laid  aside,  you 
and  each  of  you  appear  and  attend  before  the  Municipal  Court  of  the 
city  of  New  York,  borough  of  ,  Judicial  District, 

at   the    courtroom    of    said   court,  in    the   borough   of 

,  in  said  city,  on  the  day  of  ,  190  ,  at 

o'clock  in  the  forenoon,  to  testify  and  give  evidence  in  a  certain  action 
now  pending  in  said  court,  then  and  there  to  be  tried  between 
plaintiff  ,  and  defendant  ,  and  for  a  failure  to  attend  you 

will  be  deemed  guilty  of  a  contempt  of  court,  and  liable  to  pay  all 
loss  and  damages  sustained  thereby  to  the  party  aggrieved,  and  forfeit 
fifty  dollars  in  addition  thereto. 

Witness,  ,   Esq.,   a  justice  of  our   said  Court, 

at  the  borough  of  ,  in  the  city  of  New  York,  the 

day  of  ,  in  the  year  one  thousand  nine  hundred  and 

Clerk. 


512  Appendix  of  Forms. 

No.  47- 
Subpoena  Duces  Tecum. 
(See  Municipal   Court  Act,   §   196.) 

The  People  of  the  State  of  ~New  York,  to  ,  greeting: 

We  command  you,  that  all  business  and  excuses  being  laid  aside,  you 
appear  and  attend  before  the  Municipal  Court  of  the  city  of  New  York, 
borough  of  ,  Judicial   Districtr  at  the  courtroom 

of  said  court,  at  No.  street,  in  the  borough  of  , 

in  said  city,  on  the  day  of  ,  190  ,  at  o'clock 

in  the  noon,  to  testify  and  give  evidence  in  a  certain  action  now 

pending  undetermined  in  the  said  court,  between  defendant 

on  the   part  of  ,   and  bring  with  you   and   produce  at   the 

time   and   place   aforesaid   a   certain  now   in   your   custody, 

and  all  other  deeds,  evidences,  and  writings  which  you  have  in  your 
custody  or  power  concerning  the  premises.  And  for  a  failure  to  attend 
you  will  be  deemed  guilty  of  a  contempt  of  court,  and  liable  to  pay  all 
loss  and  damages  sustained  thereby  to  the  party  aggrieved,  and  forfeit 
fifty  dollars  in  addition  thereto. 

Witness,  ,   Esq.,   justice   of   our  Court   at   the 

borough  of  ,  in  the  city  of  New  York,  the  day  of 

,  190  . 

Clerk. 

NOTE. 

A  subpoena  duces  tecum  must  be  served  at  least  five  days  before  the 
trial,  otherwise  the  party  who  needs  a  book  or  paper  must  procure  an 
order  from  the  justice,  requiring  the  production  thereof,  by  the  person 
having  it  in  custody.  See  Code  Civ.  Proc,  §  867.  The  foregoing  form 
of  subpoena  will  answer  for  the  order,  omitting  the  direction,  "  The 
People,"  etc.     See  also  Municipal  Court  Act,  §  196. 


No.  48. 
Marshal's  Return  Thereon. 

I  hereby  certify  that  I  *  served  the  within  [or  "  annexed  "]  subpoena 
on  ,  at  ,  on  the  day  of  ,  190  , 

by  reading  the  same  [or  stating  its  contents]  to  him  personally,  and 
by  paying  [or  tendering]  to  him  the  sum  of  ,  his  lawful  fee  for 

one  day's  attendance  as  a  witness. 

[Date.]  [Marshal's  signature.] 


Appendix  of  Forms.  513 

No.  49. 
Affidavit  for  Warrant  of  Attachment  against  Witness. 

[Title  of  action.] 
[Venue.]  ss.: 

If  a  private  person  servSd  the  subpoena,  his  affidavit  of  service  is 
necessary ;  if  a  marshal  served  it,  his  return  is  evidence  thereof.  Where 
o.  private  person  served  the  subpoena,,  the  affidavit  should  be  as  follows: 
,  being  duly  sworn,  deposes  and  says  that  he  [insert  as 
above  from  the*].  In  either  case,  if  a  warrant  of  attachment  is  de- 
sired, the  party  or  his  attorney,  etc.,  in  his  behalf,  must  make  an  af- 
fidavit as  follows:  Being  duly  sworn  [or  "and  deponent  further"] 
says  that  the  testimony  of  the  said  is  material  to  the  said 

plaintiff   [or  "  defendant "]   upon  the  trial  of  this  action,  and  that  the 
said  has  neglected   [or  "refused"]   to  attend  as  a  witness 

in  obedience  to  such  subpoena;    and  that  deponent  knows  of  no  just 
cause  for  such  neglect  or  refusal. 

[Jurat.]  [Signature.] 

NOTE. 

If  a  witness,  upon  whom  a  subpcena-  duces  tecum  has  been  served,  at- 
tends, but  fails  to  produce  the  book  or  paper,  he  eannot  be  attached 
under  Code  Civ.  Proc,  §§  2971-2973;  but  he  may  be  summarily  com- 
mitted, under  section  3001,  until  he  produces  the  book  or  paper.  Affida- 
vit must  show  payment  of  legal  fees,  or  tender  thereof. 


No.  50. 

Attachment  —  Defaulting  Witness. 

(Municipal  Court  Act,  §  198.) 

The  People  of  the  State  of  Neio  York,  to  any  marshal  of  the  city  of 
~New  York,  greeting: 

Whereas,    it    has    been    made    to    appear    to    the    Municipal    Court 
of  the  city  of  New  York,  borough  of  ,  Judicial 

District,  that  there  had  been  issued  out  of  said  court,  in  an  action 
then  pending  therein  in  which  is  plaintiff  and  , 

defendant,   a  subpoena  directed  to  and   commanding  him  to 

appear  before  the  said  court  at  a  time  now  past,  and  give  testimony 
on  the  trial  of  said  action. 

And,  whereas,  due  proof  of  the  service  thereof  upon  said 
has  been  presented  to  said  court;  and  the  said  after  having 

been  duly  called  in  open  court,  at  the  time  and  place  whereby  he  was 
so  directed  to  appear  has  made  default  in  such  appearance  and  has 
wholly  neglected  and  refused  to  obey  the  mandate  of  said  court. 

33 


514  Appendix  of  Forms. 

These  are  therefore,  to  require  you,  and  you  and  each  of  you  are 
hereby  required,  to  forthwith  attach  and  take  into  your  custody  the 
body  of   said  and   him  keep   and   retain  in  safe   and   secure 

custody  until  the  day  of  ,   190  ,  at  the  hour  of 

it.,  at  which  time  you  are  further  required  to  bring  and  produce  hirn 
before  our    said   court  at   the   courtroom   thereof,   at  No. 
street,  in  the  borough   of  ,  in  the   city  of  New  York,   to 

be  then  and  there  dealt  with,  for  the  cause  aforesaid,  as  the  justice 
thereof  may  direct,  unless  he  shall  give  good  and  sufficient  surety  in 
the  sum  of  dollars,  for  his  appearance  at  such  time  and 

place,  and  for  your  doings  herein  this  shall  be  your  warrant,  and  have 
you  then  and  there  this  writ. 

Witness,  ,  a  justice  of  the  Municipal  Court  of  the  city  of 

New  York,  borough  of  ,  Judicial  District,  in  said 

city,  this  day  of  ,  190  . 

By  order  of  the  court, 

Clerk. 

Allowed.  Justice. 

Order  Thereon. 

(See  Municipal  Court  Act,  §  5.) 

The  foregoing  named  being  now  present,  and  being  by  me 

informed  of  the  aforesaid  charge  against  him,  and  being  by  me  requested 
to  show  good  cause  or  sufficient  excuse  if  any  he  may  have  why  he 
should  not  be  punished  as  for  a  contempt  in  not  obeying  the  mandate 
of  this  court,  as  in  the  warrant  of  attachment  hereinbefore  recited  and 
fully  set  forth,  and  failing  to  show  any  such  good  cause,  or  reasonable 
or  sufficient  excuse,  is  adjudged  guilty  of  a  willful  disobedience  of  the 
mandate  of  this  court,  and  of  a  contempt  of  court,  and  is  hereby  directed 
as  a  punishment  therefor  to  pay  a  fine  of  dollars,  and  to  be 

imprisoned  in  the  common  jail  of  the  city  of  New  York  in  the  borough 
of  ,   for   the  term  of  days,   and  until   such   fine 

be  paid,  or  he  be  discharged  according  to  law,  but  if  such  fine  be  not 
paid,  such  imprisonment  shall  not  exceed  thirty  days,  and  that  a  com- 
mitment issue  to  that  effect. 

Dated,  190  .  Justice. 

Certificate  of  Marshal. 

I,  one  of  the  marshals  of  the  city  of  New  York,  hereby 

make  return  to  the  within  warrant  of  attachment,  that  I  have  arrested 
the  said  ,  and  now  produce  him  and  have  admitted  hini 

to  bail  as  required  by  said  writ. 

Dated,  190  .  Marshal. 


Appendix  of  Forms.  515 

No.  51. 

Minute  of  Conviction  Thereon. 

[Venue.]  ss.: 

On  the  day  of  ,   190  ,  a  defaulting  witness,  having 

been  arrested  and  brought  before  the  Municipal   Court  of  the  city   of 
New   York,   borough    of  ,  Judicial    District,   by 

virtue  of  a  warrant  issued  as  prescribed  in  the  Municipal  Court  Act 
of  the  city  of  New  York,  was  convicted  before  me  and  fined  the  sum  of 

,  besides  costs,  for  nonattendance  as  a  witness  to  give 
evidence  [or  "for  refusal  to  testify  as  a  witness"]  before  me  at  the 
Municipal   Court  of   the   city   of   New   York,   borough   of  , 

Judicial  District,  on  the  day  of  ,   190  , 

held  at  No.  street  in  said  city,  in  pursuance  of  a  subpcena 

duly  issued  and  served  upon  him  in  behalf  of  the  plaintiff  [or  "  defend- 
ant"],  in   an   action  then  and  there  depending  before  me,    in   which 

was  plaintiff,  and  was  defendant. 

Jilstice. 


No.  52. 
Execution  to  Collect  Fine. 

[Venue.]  ss.: 

The  People  of  the  State  of  New  York,  to  any  marshal  of  the  city  of 
Neto  York,  greeting: 

Whereas,  [insert  from  the  *  in  No.  53  to  the  end  of  the  form;  then 
add],  a  minute  of  which  conviction,  the  cause  thereof,  and  the  fine  and 
costs  imposed,  have  been  entered  in  the  docket-book  of  said  justice; 
and  whereas   the  has  neglected  to  pay  said   fine  and  costs 

[or,  "  and  whereas  the  sum  of  ,  part  of  the  said  fine  and 

costs,  remains  unpaid  to  the  said  justice'],  you  are  therefore  hereby 
commanded  to  collect  the  said  sum  remaining  unpaid  of  the  goods  and 
chattels  of  the  said  within  the  city  of  New  York ;  and.  for 

want  thereof,  to  take  him  and  convey  him  to  the  common  jail  of  the  city 
of  New  York  in  the  borough  of  ,  there  to  remain  until  he 

pays  such  sum,  not  exceeding  thirty  days;  and  forthwith  to  bring  the 
money  collected  before  the  said  justice,  and  do  you  return  this  execu- 
tion within  days  after  the  date  hereof. 

Witness  my  hand  this  day  of  ,  190  ,  at  , 

in  said  city. 

Justice. 


516  Appendix  of  Forms. 

No.  53. 

Venire. 

(Municipal  Court  Act,  §  231.) 

The  People  of  the  State  of  New  York,  to  any  marshal  of  the  city  of 
Neio  York,  greeting: 

We  command  you  to  summon —  [24  persons.] 

NAMES.  )  RESIDENCES. 


good  and  lawful  men  of  the  borough  of  ,  in  the  city  of  New 

York,  qualified  to  serve  as  jurors  in  courts  of  record,  who  are  in  nowise 
of  kin  to  ,  the  plaintiff,  nor  to  ,  the  defendant,  be- 

tween whom  a  controversy  exists,  to  be  and  appear  before  the  Municipal 
Court  of  the  city  of  New  York,  Borough  of  ,  Judicial 

District,   at  the  courtroom,  No.  street,   in   said   borough 

in  said  city  on  the  day  of  instant,  at 

o'clock   in  the  of   that  day,   between  the   said   parties,  and 

have  you  then  and  there  the  names  of  the  jurors  and  this  precept. 
Given  under  my  hand,  the  day  of  ,  190  . 

Clerk. 


No.  54. 
Marshal's  Return  of  Service  Thereof. 

I  do  hereby  certify,  that  by  virtue  of  the  within  [or  "  annexed  "] 
venire,  I  have  personally  notified  the  following  persons  to  attend  as 
therein  prescribed,  as  jurors  to  try  the  said  action.  [Names  and  resi- 
dences.'] 

[Date.]  Marshal. 


No.  55. 
Warrant  of  Commitment   of  Witness  Attending  and  Refusing  to  be 

Sworn,  etc. 

(Municipal  Court  Act,  §  4.) 

[Venue.]  ss.: 

The  People  of  the  State  of  New  York,  to  any  marshal  of  the  city  of 
New  York: 

Whereas,   on   the  trial   of  a   civil   action  before  the   Municipal   Court 

of  the  city  of  New  York,  Borough  of  ,  Judicial  District, 

the  undersigned,  justice,  this  day,  in  which  was  plaintiff,  and 

was  defendant,  ,  a  witness,  attending  in  behalf  of 

said  plaintiff  before  me  in  said  action,  refused  to  be  sworn  or  affirmed  in 


Appendix  of  Foems.  517 

the  form  prescribed  by  law  [or  "  refused  to  answer  the  following  per- 
tinent and  proper  question,*'  stating  the  question  in  full;  or  "neglected 
or  refused  to  produce  a  book  known  as,"  describing  it;  or  "a  paper 
called,"  etc.,  describing  it,  "  which  lie  had  been  duly  subpoenaed  to  pro- 
duce," or  "  which  he  had  been  duly  required  to  produce  by  an  order  duly 
made;  "]  and  whereas,  the  said  plaintiff  made  oath  before  me  that  the 
testimony  of  the  said  witness  [or  "  that  the  said  book  "  or  "  paper  "]  was 
so  far  material  to  his  case,  that  without  it  he  could  not  safely  proceed 
with  the  trial  of  the  said  action;  whereas,  by  the  return  of  , 

marshal  of  said  borough   [or  the  affidavit  of  ],  it  appeared 

that  the  subpoena  [or  "  order  "]  aforesaid  was  duly  served  upon  the 
said  as  required  by  law. 

Now,  therefore,  you,  the  said  marshal,  are  hereby  commanded  forth- 
with to  convey  and  deliver  the  said  into  the  custody  of  the 
said  sheriff  of  said  at  the  common  jail  of  the  city  of  New 
York  in  the  borough  of  ,  in  said  city,  and  you  the  said  sheriff 
are  hereby  commanded  to  receive  the  said  into  your  custody  in 
the  said  jail,  and  him  there  closely  confine  by  virtue  of  this  warrant, 
until  he  submits  to  be  sworn  or  affirmed,  as  such  witness  as  aforesaid 
[or  "to  answer  the  said  question"  or  "produce  the  said  book"  or 
"  paper  "]  or  is  otherwise  discharged  according  to  law. 

[Date.]  Justice. 

[Seal  of  court.]  Clerk. 


No.  56. 
Affidavit   that  Justice  is  a  Material  Witness. 

(Municipal  Court  Act,   §    13.) 
[Title  of  action.] 
[Venue.]  ss.: 

being  duly  sworn,  deposes  and  says : 

1.  That  he  is  the  defendant  in  the  above  entitled  action  [or  "  special 
proceeding  "]. 

or  1.  That  he  is  the  attorney  for  the  defendant  in  the  above  entitled 
action  [or  "  special  proceeding"],  and  that  said  defendant  has  not  been 
arrested  therein. 

2.  That  an  issue  of  fact  has  not  been  joined  in  said  action  [or  "  special 
proceeding  "]. 

3.  That  the  said  justice  before  whom  the  said  action  [or  "  special 
proceeding  "]  is  pending  is  a  material  witness  for  tbe  defendant,  with- 
out whose  testimony  he  cannot  safely  proceed  to  trial ;  that  he  expects 
to  prove  by  said  justice  the  following  facts  and  circumstances  [stat- 
ing them  particularly]  ;  and  that  deponent  is  unable  to  prove  the  said 
facts  and  circumstances  without  the  testimony  of  the  said  justice. 

[Jurat.]  [Signature.] 


518  Appendix  of  Fokms. 

No.  57. 

Order  Thereon. 
[Title  of  action.] 

Whereas,  before  the  joinder  of  issue  in  the  above  entitled  action  [or 
"special  proceeding"],  satisfactory  proof  was  presented  in  behalf  of 
the  defendant  to  me,  the  undersigned  justice,  before  whom  the  jaid 
action  [or  "  special  proceeding"]  is  pending,  by  the  affidavit  of  the  said 
defendant  [or  otherwise  as  the  case  may  be],  that  I  am  a  material  wit- 
ness for  the  said  defendant,  without  whose  testimony  he  cannot  safely 
proceed  to  trial. 

Ordered,  that  the  said  action  [or  "  special  proceeding  "]  be  continued 
before    the   Municipal    Court    of    the   city   of   New    York,    borough    of 
,  Judicial  District. 

[Date.}  Justice. 


No.  58. 

Notice  to  Juror. 

(Municipal  Court  Act,  §  235.) 
To  Mr. 

Sir. —  You  are  hereby  summoned  to  attend  as  a  juror,  before 

The   Municipal   Court  of   the  city  of   New  York,  borough 
of  ,  District,  at  the  courthouse,  No.  ,  in  the 

borough  of  ,  in  said  city,  on  the  day  of  , 

at  o'clock  in  the  noon. 

[Fine  for  nonat tendance,  twenty-five  dollars.] 

Dated  this  day  of  ,  190  . 

By  order  of  the  court.  Clerk. 


No.  59. 
Undertaking  to  Indemnify  against  Lost  Bill  or  Note. 

(See  Code  Civ.  Proc,  §  1917.) 
[Title  of  action.] 

Whereas,   this  action   is   founded   upon  a   promissory  note,  made  by 
,  the  defendant,  to  ,  or  bearer,  for 

dollars,  dated  about  the  day  of  ,  190  ,  which  note  the 

said  alleges  was  lost  while  it  belonged  to  him;   now,  there- 

fore, we  do  jointly  and  severally  undertake,  pursuant  to  the  statute, 
to  the  said  in  the  sum  of  dollars,  that  the  said 

will    indemnify   the   said  ,   his   heirs   and   per- 


Appendix  of  Fokms.  519 

sonal  representatives,  against  any  claim,  by  any  other  person,  on  ac- 
count of  such  note,  and  against  all  costs  and  expenses,  by  reason  of 
such  a  claim. 

[Date.]  [Signatures.] 

[Add  acknowledgment,  justification,  and  approval.  Plaintiff  need 
not  execute  the  undertaking j  but  there  must  be  at  least  tivo  sureties. 
The  amount  to  be  inserted  in  the  blank  must  be  fixed  by  the  justice,  at 
not  less  than  twice  the  amount  of  the  note.]  See  Desmond  v.  Bice, 
2  Hilt.  530. 


No.  6o. 

Examination  of  Sureties. 
[Title  of  action.] 
[Venue.]  ss.: 

,  being  duly  sworn,  doth  depose  and  say,  that  he  is  the 
person  offered  for  acceptance  as  surety  in  the  foregoing  entitled  action. 
That  he  resides  at  No.  street,  in  the  borough  of  , 

in  the  city  of  New  York,  and  is   a  holder  therein   and  worth 

hundred  dollars,   as  well   over   and   above 

all  claims,  undertakings,  liabilities,  and  indebtedness  as  over  and  above 
any  property  of  deponent  which  by  law  is  exempt  from  levy  and  sale 
on  execution.  That  among  other  property  owned  by  deponent  in  his 
own  right,  and  upon  which  there  are  no  claims  or  incumbrances  except 
those,  if  any,  mentioned  herein,  is  the  following,  viz. : 

That  the  personal  and  firm  debts  of  deponent,  including  notes  not  due, 
do  not  exceed  the  sum  of  dollars.     That  there  are  no  judg- 

ments against  deponent  for  any  sum  of  money,  nor  is  there  any  suit 
now  pending  against  deponent  for  any  cause  of  action,  except 

That  deponent  is  not  surety  or  principal,  upon  any  bond,  undertaking 
or  other  obligation  for  the  payment  of  any  sum  of  money,  performance 
of  any  act,  duty,  or  contract,  either  for  himself  or  another  person, 
except 

That  deponent  does  not  know  of  any  reason,  nor  has  he  concealed  any 
fact  which  if  known  would  be  a  good  reason,  why  he  should  not  be  ac- 
cepted as  one  of  the  sureties  aforesaid. 

Sworn  to  before  me  this  ) 

day  of  ,  190  .    \ 

[Signature.] 


520 


Appendix  of  Forms. 


No.  61. 

Transcript  of  Judgment. 

(Municipal  Court  Act,  §  261.) 


Time  of  Docketing. 


Names  of  Parties  against  whom 
Judgments  have  been  Obtained. 


Names  of  Parties  in  whose  Favor 
Judgments  have  been  Obtained. 


Amount  of  Judgment. 

Officer's  Return  on  Execution. 

Judgments  when  Satisfied. 

Judgment,. . .  .$ 
Costs $ 

$ 

Plaintiff's  Attorney. 

I  certify,  that  the  foregoing  contains  all  the  facts  necessary  to  make 
a  perfect  docket  of  the  judgment  rendered  in  the  Municipal  Court  of  the 
city  of  New  York,  borough  of  ,  Judicial  District,  in 

the  above  action. 

Dated,  190  .  Clerk. 

NOTE. 

If  required,  add,  in  addition  to  the  within,  I  further  certify  that  the 
words  "  Not  Summoned "  are  written  upon  the  docket  opposite  or 
under  the  names  of  the  following  within  named  defendants. 

Clerk. 


No.  62. 
Certificate  of  Satisfaction  of  Judgment. 

[Title  of  action.] 

Attorney  for 
Judgment  rendered  the  day  of  .  190  ,  in  favor  of  the 

against  the 

For   damages    $ 

For  costs  and  extra  costs  $ 

Total $ 

The  names  of  the  defendants  who  were  not  summoned  are: 


Appendix  of  Fokms.  521 

[Venue.]  ss.: 

I,  ,  Clerk  of  the  Municipal  Court  of  the  city  of  New  York, 

borough  of  ,  Judicial  District,  do  hereby  certify  that 

the  foregoing  is  a  correct  transcript  from  the  docket  of  judgments  kept 
in  my  office,  of  judgments  rendered  in  said  court. 

I  also  certify  that  the  said  judgment  is  satisfied  and  discharged 

of  record.  In  testimony  whereof,  I  have  hereunto  subscribed  my  name 
and   affixed   the  seal  of  the  said   court  this  day  of  , 

190  .  Clerk. 


No.  63. 

Warrant  of  Commitment.  , 

STATE  OF  NEW  YORK,  ) 

City  of  New  York,         (.  ss. : 
Borough    of  .      ; 

The  People  of  the  State  of  Neio  York,  to  any  marshal  of  the  city  of 
New  York,  and  to  the  keeper  of  the  common  jail  of  ,  greeting: 

Whereas,  at  a  regular  session  of  the  Municipal  Court  of  the  city  of 
New  York,  borough  of  ,  Judicial   District,   held 

at  the  courtroom   thereof,  in  the  said   borough,   on   the 

day  of  ,  190  . 

Present,  ,  a  justice  of  the  said  court,  while  the  said  court 

was  engaged  in  the  trial  of  then  pending  in  said  court  be- 

tween ,  plaintiff,   and  ,  defendant,   according  to 

the  statute   in    such    case  made  and  provided,  of  said 

borough,  did,  during  the  sitting,  and  in  the  immediate  view,  presence, 
and  hearing  of  the  said  court,  and  while  the  said  court  was  so  engaged 
as  aforesaid,  contemptuously,  insolently  and  in  a  disorderly  manner 
so  behave  and  conduct  himself  as  to  directly  tend  to  interrupt  its  pro- 
ceedings, and  which  conduct  and  behavior  actually  did  interrupt  the 
proceedings   of  said   court,   and  impair  the   respect  due   its  authority, 

by 

And  whereas,  the  said  was  thereupon  required  by  the  said 

court  to  answer  and  show  cause  why  he  should  not,  for  the  cause  afore- 
said, be  convicted  of  a  criminal  contempt  of  said  court  and  be  punished 
therefor. 

And  whereas,  the  said  did  not  show  any  such  cause 

And  whereas,  the  said  was  thereupon,  for  the  cause  afore- 

said, adjudged  by  the  said  court  to  be  guilty  of  a  criminal  contempt 
of  said  court,  and  was  convicted  thereof  b;-  the  said  court,  and  was  or- 
dered and  adjudged  by  the  said  court,  as  a  punishment  for  said  con- 
tempt, to  pay  a  fine  of  dollars,  and  to  be  imprisoned  in  the 
common  jail  of  the  said  for  the  term  of  days,  and 
until  such  fine  be  paid  or  he  be  discharged  according  to  law. 


522  Appendix  of  Forms. 

Now,  therefore,  you,  the  said  marshal,  are  hereby  commanded  to  take, 
convey,   and   deliver   the   said  into  the  custody  of  the   said 

keeper  of  the  said  jail;  and  you,  the  said  keeper,  are  hereby  required 
to  receive  the  said  into  your  custody  in  the  said  jail,  and 

him  there  safely  keep  during  the  said  term  of  days,  and  until 

he  pay  the  said  fine  or  be  duly  discharged  according  to  law,  and  hereof 
fail  not. 

Witness,  ,  a  justice  of  the  Municipal  Court  of  the  city  of 

New  York,  Borough  of  ,  Judicial   District,   in   the 

city  of  New  York,  this  day  of  ,  190  . 

Clerk. 

Allowed  in  open  court.  Justice. 

By  the  Court.  Clerk. 


[Seal.] 


NOTE. 

(See  Code  Civ.  Proc,  §  2874;  Municipal  Court  Act,  §  4.) 


No.  64. 

Execution  against  the  Property  —  Single  Defendant. 

(Municipal  Court  Act,  §  260.) 

The  People  of  the  State  of  New  York,  to  any  marshal  of  the  city  of 
New  York,  greeting: 

Whereas,    judgment   was    rendered    on   the  day    of  , 

one  thousand   nine   hundred   and  ,   in  an  action   in  the 

Municipal  Court  of  the  city  of  New  York,  borough  of  , 

Judicial  District,  before  ,  Esq.,  justice,  between  , 

plaintiff,    and  ,    defendant,   in   favor    of   the   said   plaintiff, 

against    the    said    defendant,  for    the    sum    of 

dollars. 

And  whereas,  the  sum  of  dollars  is  now  actually  due  thereon: 

Therefore  we  command  you,  that  you  collect  the  amount  due  on  said 
judgment,  out  of  the  personal  property  of  the  said  judgment  debtor, 
and   pay   the   same   to   the   said  and   return  thi9   execution 

within  twenty  days  after  its  issue  to  the  said  court,  with  a  certificate 
thereon  indorsed,  stating  the  manner  in  which  you  have  executed  the 
same. 

Witness,  ,  Esq.,  a  justice  of  said  court  at  the  borough  of 

,  the  day  of  ,  one  thousand  nine  hundred 

and  . 

Clerk. 


Appendix  of  Forms.  523 

No.  65. 
Execution    against   the   Property  —  Joint    Debtors. 

(Municipal  Court  Act,   §  268.) 

The  People  of  the  State  of  New  York,  to  any  marshal  of  the  city  of 
New  York,  greeting: 

Whereas,  judgment  was  rendered  on  the  day  of  ,  one 

thousand  nine  hundred  and  ,  in  an  action  in  the  Municipal  Court 

of  the  city  of  New  York,  borough  of  the  ,  Judicial 

District,  before  ,   Esq.,  justice,  between  ,  plain- 

tiff, and  ,  defendant,  in  favor  of  the  said  plaintiff 

against  the  said  defendant,  ,  for  the  sum  of 

dollars. 

And   whereas,   the   sum  of  dollars,   is  now  actually  due 

thereon, 

Therefore  we  command  you,  that  you  collect  the  amount  due  on  said 
judgment  out  of   the   personal   property  of  the   said  judgment   debtor 

and  the  separate  property  of  the  judgment  debtor 
upon  whom  the  summons  herein  was  served,  and  pay  the  same  to  the 
said  plaintiff  and  return  this  execution,  within  twenty  days  after  its 
receipt  by  you,  to  the  said  Court,  with  a  certificate  thereon 

indorsed,  stating  the  manner  in  which  you  have  executed  the  same. 

Witness,  ,  Esq.,  a  justice  of  said  court,  at  the  borough  of 

,  the  day  of  ,  one  thousand  nine  hundred 

and 

Judgment,        $ 

Costs, 

Extra  costs, 

Clerk. 

Indorsement. 

The  officer  executing  this  process  will  take  notice  that  the  following- 
named  defendants  were  not  personally  served  with  a  summons  herein, 
viz.: 

and  that  as  to  them,  the  execution  thereof  must  be  restricted  as  below 
prescribed. 

An  execution  against  property  shall  not  be  levied  upon  the  sole  prop- 
erty of  such  a  defendant,  but  it  may  be  collected  out  of  personal  prop- 
erty owned  by  him  jointly  with  the  other  defendants  who  were  sum- 
moned, or  with  any  of  them,  and  out  of  the  real  and  personal  property 
of  the  latter,  or  of  any  of  them. 

Clerk. 


524  Appendix  of  Forms. 

No.  66. 

Execution  against  the  Person. 

(Municipal  Court  Act,   §§  271,  272.) 

The  People  of  the  State  of  New  York,  to  any  marshal  of  the  city  of 
New  York,  greeting: 

Whereas,  judgment  was  rendered  on  the  day  of  ,  one 

thousand  nine  hundred  and  ,  in  an  action  in  the  Municipal 

Court  of  the  city  of  New  York,  borough  of  ,  Judicial 

District,  before  ,  Esq.,  justice,  between  ,  plain- 

tiff,  and  ,   defendant,   in   favor   of   the   said  , 

against  the  said  ,  for  the  sum  of  dollars. 

And  whereas,  the  sum  of  is  now  actually  due 

thereon ; 

Therefore,  we  command  you,  that  you  collect  the  amount  due  on  said 
judgment  out  of  the  personal  property  of  the  said  judgment  debtor. 

And,  if  sufficient  property  of  the  said  defendant  liable  to  execution, 
cannot  be  found  wherewith  to  satisfy  the  said  judgment,  you  are  fur- 
ther commanded  to  arrest  the  said  defendant,  and  commit  him  to  the 
common  jail  of  the  city  of  New  York,  in  the  borough  of  , 

the  keeper  whereof  is  hereby  commanded  to  receive  the  said  defendant 
and  him  safely  keep  until  he  shall  pay  the  judgment  or  be  discharged 
according  to  law;  and  return  this  execution  within  twenty  days  after 
its  receipt  by  you  to  the  said  Court,  with  a  certificate  stat- 

ing the  manner  in  which  you  have  executed  the  same. 

Witness,  ,  Esq.,  a  justice  of  said  court,  at  the  borough  of 

,  in  the  city  of  New  YorK,  the  day  of  , 

one  thousand  nine  hundred  and 


Clerk. 


NOTE. 

See  also  note  under  Form  No.  65  as  to  "  Indorsement." 


No.  67. 

Execution  in   Favor   of   Wage-Earners. 

(Municipal  Court  Act,  §  274.) 

[Venue.]  ss.: 

The  People  of  the  State  of  New  York,  to  any  marshal  of  the  city  of 
New  York,  greeting: 

Whereas,  ,  plaintiff,  lately  before  the  Municipal  Court  of 

the  city  of  New  York,  borough  of  ,  Judicial  Dis- 

trict, at  the  courthouse  in  said  borough  recovered  against  , 

in   a   certain  action,  the  sum   of  dollars,   damages   and 


Appendix  of  Forms.  525 

costs;  and  whereas,  an  execution  against  the  property  of  said  defend- 
ant was  in  due  form  of  law  issued  by  the  clerk  of  said  court  to  one 
of  the  marshals  of  the  city  of  New  York,  and  the  same  having  been  re- 
turned unsatisfied  by  such  marshal; 

And  whereas,  the  action  is  one  of  those  referred  to  in  section  274  of 
the  Municipal  Court  Act   (Laws  1902,  chap.  580)  ; 

Now,  therefore,  we  command  you  forthwith  to  take  the  body  of  the 
said  defendant  and  him  safely  convey  to  the  common  jail  of  the  city  of 
New  York  in  the  borough  of  ;  the  keeper  whereof  is  hereby 

commanded  to  receive  the  said  defendant,  and  safely   keep 

and  imprison  until  he  shall  pay  the  amount  of  said  judgment  and  costs, 
together  with  the  marshal's  and  jailer's  fees;  but  such  imprisonment 
shall  not  exceed  fifteen  days,  and  the  said  jailer  shall  return  this  pre- 
cept to  the  clerk  of  the  said  court,  after  the  expiration  of  said  fifteen 
days,  with  his  return  thereon  indorsed. 

Witness,  ,   our    said    justice   at   the   place    aforesaid,   the 

day  of  ,  190  . 

Clerk. 

NOTE. 

No  property  is  exempt  from  levy  and  sale  under  an  execution  issued 
under  this  section. 


No.  68. 
Indemnity  Bond. 

Know  all  men  by  these  presents,  that  we,  ,  and 

,  are  held  and  firmly  bound  unto  ,  a  marshal  of  the 

city  of  New  York,  in  the  sum  of  dollars,  lawful  money  of 

the  United  States  of  America,  to  be  paid  to  the  said  ,  or 

to  his  certain  attorney  or  attorneys,  executors,  administrators,  or  as- 
signs. For  which  payment,  well  and  truly  to  be  made,  we  bind  our- 
selves, our  and  each  of  our  heirs,  executors,  and  administrators,  jointly 
and  severally,  firmly  by  these  presents. 

Sealed   with   our   seals.     Dated  the  day  of  ,   in  the 

year  one  thousand  nine  hundred  and 

Whereas,  the   above-bounden  did  obtain  judgment  in  the 

Municipal  Court  of  the  city  of  New  York,  borough  of  , 

Judicial   District,   against  ,  whereupon   execution  has  been 

issued,  directed,  and  delivered  to  the  said  ,  marshal  afore- 

said, requiring  him.  out  of  the  personal  property  of  the  said  judgment 
debtor,  to  satisfy  the  judgment  aforesaid.  And  whereas,  certain  personal 
property  that  appears  to  belong  to  the  said  ,  said  judgment 

debtor,  is  claimed  by  one  ; 


526  Appendix  of  Forms. 

Now,  therefore,  the  condition  of  the  above  obligation  is  such,  that  if 
the    above-bounden  shall    well    and    truly    save,    keep,    and 

bear  harmless,  and  indemnify  the  said  ,  and  all  and  every 

person  and  persons  aiding  and  assisting  him  in  the .  premises,  of  and 
from  all  harm,  let,  trouble,  damage,  liability,  costs,  counsel  fees,  ex- 
penses, suits,  actions,  judgments,  special  proceedings,  and  executions 
that  shall  or  may  at  any  time  arise,  come,  accrue,  happen,  or  be  brought 
against  him,  them,  or  any  of  them,  as  well  for  the  levying  and  making 
sale  under  and  by  virtue  of  such  execution,  of  all  or  any  personal  prop- 
erty which  he  or  they  shall  or  may  judge  to  belong  to  the  said  judgment 
debtor,  as  well  as  in  entering  any  shop,  store,  building,  or  other  prem- 
ises, for  the  taking  of  any  such  personal  property,  then  this  obligation 
to  be  void;  otherwise  to  remain  in  full  force  and  virtue. 
Sealed  and  delivered  in  the   1 

presence  of  j  [l.  s.] 

[l.  s.] 

[Affidavits  and  acknowledgments.']  [l.  s.] 


No.  69. 

Undertaking  on   Removing  Cause  to  the  City  Court  of  the   City  of. 

New  York. 

(Municipal  Court  Act,  §  3.) 
[Title  of  action.] 

Whereas,  the  above-named  plaintiff  has  commenced  an  action  in  this 
court,  for  a  cause  of  action  arising  under  the  Municipal  Court  Act  of 
the  city  of  New  York,  and  in  which  the  claim  or  demand  of  the  plaintiff 
exceeds  the  sum  of  two  hundred  and  fifty  dollars;  and  the  defendant 
having  appeared  and  joined  issue  therein,  and  before  an  adjournment 
has  been  granted  upon  his  application,  having  applied  for  the  removal 
of  this  action  to  the  City  Court  of  the  city  of  New  York,  pursuant  to 
the  provisions  of  the  said  act; 

Now,   therefore,   we  ,    the   above-named   defendant, .  and 

,   of  street,   and  ,   of  street, 

of  the  borough  of  ,  have,  and  hereby  do,  in  consideration  of 

the  premises  aforesaid,  and  of  one  dollar  to  us  in  hand  paid,  jointly 
and  severally  undertake  that  we  will  pay  to  the  plaintiff  the  amount 
of  any  judgment  that  may  be  recovered  against  the  defendant  in  said 
City  Court  of  the  city  of  New  York  in  this  action. 

Dated  ,  190  . 

In  presence  of  [Signatures.] 


Appendix  or  Forms.  527 

[Venue.]  ss.: 

and  ,  being  duly  sworn,  doth  depose  and  say, 

each  for  himself,  that  they  reside  ,  at  No.  street, 

in  the  borough  of  ,  in  the  city  of  New  York,  and  are  each 

holders  therein,   and   are  each   worth  dollars,  as 

■well  over  and  above  all  claims,  undertakings,  liabilities,  and  indebted- 
ness, as  over  and  above  the  property  of  deponent,  which  by  law  is  exempt 
from  sale  by  execution. 

Sworn  to,  this  day  of   ) 

,  190  ,  before  me        j 

[Signature] 

On  this  day  of  ,   190  ,  before  me  personally  came 

and  ,  to  me  known  to  be  the   individuals  de- 

scribed in,  and  who  executed,  the  foregoing  undertaking,  and  who  sev- 
erally acknowledged  that  they  executed  the  same,  and  for  the  purpose 
therein  mentioned. 

Notary  Public,  County. 

I  hereby  approve  of  the  within  undertaking  as  to  form  and  as  to  the 
sufficiency  of  the  sureties.     Amount  fixed  at  dollars. 

Dated  ,  190  .  Justice. 


No.  70. 

Order  Removing  Action. 
[Title  of  action.] 

Whereas,  the  above-named  plaintiff  has  commenced  an  action  in  this 
court  against  the  above-named  defendant,  for  a  cause  of  action  specified 
in  the  Municipal  Court  Act  of  the  city  of  New  York,  and  the  damages 
claimed  therein  exceed  the  sum  of  two  hundred  and  fifty  dollars,  and 
the  defendant  ha  appeared  and  joined  issue  therein  and  no  adjourn- 
ment has  been  had  upon  the  application  of  the  said  defendant;  and 
whereas,  the  said  defendant  has  applied  to  a  justice  of  said  court,  for 
an  order  removing  the  action  into  the  City  Court  of  the  city  of  New 
York,  pursuant  to  the  provisions  of  the  said  act,  and  has  given  the 
undertaking  required  by  statute,  which  undertaking  with  the  sureties 
therein  has  been  duly  approved. 

Now  therefore,  it  is  ordered,  pursuant  to  the  said  act,  in  such  case 
made  and  provided,  that  this  action  be  and  the  same  is  hereby  removed 
into  the  said  City  Court  of  New  York. 

Dated  ,  190  .  Justice. 


528  Appendix  of  Forms. 

No.  71. 

Affidavit  to  Obtain  Order  to  Plead. 

[Title  of  action.] 
[Venue. ]  ss.: 

,  being  duly  sworn,  deposes  and  says  that  he  is  the  at- 
torney  for  the  plaintiff  in  this  action,  which  was  originally  commenced 
in  the  Municipal  Court  of  the  city  of  New  York,  borough  of  , 

Judicial  District,  on  the  day  of  ,   190  ,  for   an 

amount  exceeding  the  sum  of  two  hundred  and  fifty  dollars,  and  that 
after  issue  joined  and  before  trial,  the  defendant  filed  the  usual  under- 
taking according  to  the  statute  in  such  case  made  and  provided,  and 
removed  the  action  into  this  court;  that  the  pleadings  in  the  court 
below  were  oral  and  not  in  writing.  [State  no  previous  application  has 
been  made  as  in  Form  No.  6.] 

Sworn  to  before  me,  this 
day  of  ,  190 

[Signature.] 


No.  72. 
Order  to  Plead. 

At  a  Special  Term,  etc. 
[Title  of  action.] 

On  reading  and  filing  the  annexed  affidavit,  and  on  motion  of 

attorney  for  the  plaintiff  herein,  it  is  hereby  ordered,  that  the 
plaintiff  in  this  action  serve  his  complaint  in  writing  on  the  defendant 
within  six  days  after  the  service  of  a  copy  of  this  order,  and  that 
the  defendant  within  six  days  thereafter  serve  an  answer  thereto, 
and  that  the  cause  afterward  proceed  as  an  action  originally  commenced 

in  this  court. 

[Signature  of  judge.] 


No.  73. 
Notice  of  Appeal. 

(Municipal  Court  Act,  §§  310-327.) 
[Title  of  action.] 

Take   notice   that   the   defendant  hereby   appeals   to   the 

Appellate  Term  of  the  Supreme  Court  of  New  York,  city  and  county 
of  New  York,*  from  the  judgment  rendered  against  him  in  the  above- 

*  If  in  Second  Department,  say  "  to  the  Appellate  Division." 


Appendix  of  Forms.  529 

entitled  action,  in  favor  of  the  plaintiff  ,  on  the  day 

of  .   190  ,  for  the  sum  of  dollars,  damages  and 

costs,  and  from  the  whole  and  each  and  every  part  of  such  judgment. 

Dated  ,  190  . 

To  ,  Esq..  plaintiff  and  respondent,  and 

,  Esq.,  clerk. 

Yours,  etc., 

Attorney  for  defendant  and  appellant. 


No.  74. 

Undertaking  on  Appeal  to  Secure  Stay  of  Execution. 

(Municipal  Court  Act,  §  314.) 
[Title  of  action.] 

Whereas,  on  the  day  of  ,190  ,  in  the  above-named 

court,  ,  the  above-named  respondent,  recovered  a  judgment 

against  ,   the  above-named  appellant,  for  ; 

And  the  above-named  appellant,  feeling  aggrieved  thereby,  intends  to 
appeal  therefrom  to  the  Appellate  Term  of  the  Supreme  Court  of  New 
York  city  and  county  of  New  York  [or  Appellate  Division,  Second  De- 
partment] ; 

Now  therefore,   we,  ,   of  No.  street,  in  the 

of  ,   and  of  No.  street, 

in  said  borough,  do  hereby,  pursuant  to  the  statute  in  such  case  made 
and  provided,  undertake,  that  if  the  said  appeal  is  dismissed,  or  if  judg- 
ment is  recovered  against  the  said  appellant  in  the  said  appellate  court, 
and  an  execution  issued  thereupon  is  returned  wholly  or  partly  unsatis- 
fied, we  will  pay  the  amount  of  the  said  judgment,  or  the  portion  thereof 
remaining  unsatisfied,  not  exceeding  the  sum  of  dollars. 

Dated  ,  190  . 

[Venue.]  ss.: 

,   one   of  the  subscribers   to  the  foregoing   undertaking, 
being  duly  sworn,  says  that  he  is  a  resident  and  holder  within 

this   State,  and   is  worth   the   sum  of  dollars,  over   all   his 

debts  and  liabilities,  and  exclusive  of  property  exempt  by  law  from 
execution. 

Sworn  to  before  me,  this 
day  of  ,  190 

I  certify,  that  on  this  day  of  ,  190  ,  before  me  per- 

sonally appeared  the  above-named  ,  known  to  me  to  be  the  in- 

dividuals described  in  and  who  executed  the  above  undertaking,  and  sev- 
erally acknowledged  that  they  executed  the  same. 

Notary  Public,  County. 

34 


530  Appendix  of  Forms. 


One  or  more  sureties  in  a  sum  of  at  least  one  hundred  dollars,  and 
not  less  than  twice  the  amount  of  the  judgment  to  be  approved  by  a 
justice  of  the  court.  A  copy  of  the  undertaking  with  a  notice  of  the 
delivery  thereof,  must  be  served  with  the  notice  of  appeal  and  in  like 
manner.  Section  1335  of  the  Code  of  Civil  Procedure  applies  to  this 
undertaking. 

If  the  judgment  appealed  from  is  for  the  recovery  of  a  chattel,  the 
undertaking  must  be  to  the  effect  that  the  sureties  will  pay  the  sum 
fixed  by  that  judgment  as  the  value  of  the  chattel,  together  with  the 
damages,  if  any,  awarded  for  the  taking,  withholding,  or  detention 
thereof. 


As  to  form  of  Justice's  Return  on  Appeal,  see  Code  Civ.  Proc.,  §  3050, 
ante. 

As  to  form  of  Undertaking  as  condition  of  opening  "  Default"  see 
Municipal  Court  Act,  §§  253,  254,  255,  256. 


No.  75. 

Return  of  Justice. 

(See  Municipal  Court  Act,   §   317.) 

To  the  Supreme  Court,  Appellate  Term  [or  Appellate  Division], 

Judicial  Department,  for  hearing  of  appeals  from   the  Municipal 
Court  of  the  city  of  New  York,  borough  of  , 

Judicial  District: 

.  An  appeal  having  been  taken  from  the  judgment  heretofore  rendered 
in  a  certain  action  wherein  w        plaintiff    and 

w         defendant  ,  tried,  on  the  day  of  ,  A.  d.  190  ,  be- 

fore me  ,  in  the  Municipal  Court  in  the  city  of  New  York, 

boTOUgh  of  ,  District; 

I,  ,  justice  of  said  court,  do,  pursuant  to  the  statute  in 

such  case  made  and  provided,  hereby  respectfully  return  the  testimony, 
proceedings,  and  judgment  in  the  said  action. 

On  the  day  of  ,  190  ,  a  summons  was 

issued  out  of  the  Municipal   Court  in  the  city  of  New  York  for  the 
borough  of  ,  Judicial  District,  signed  by  the  clerk 

of  the  said  court,  a  copy  thereof  being  hereunto  annexed. 

[Said  summons  not  having  been  served  within  the  time  required  by 
law,  alias  summons  were  thereupon  issued  from  time  to  time,  the  last 
of  which  being  returnable  on  the  day  of  ,  190  .] 


Appendix  qf  Forms.  531 

The  said  summons  has  indorsed  upon  it  the  following: 

City  and  County  of  New  York,  ss.  : 

On  the  day  of  ,  I  served  the  within  summons 

in  the   city   of   New   York,   on  the   within-named   defendant     in 

person  at  No.  by  delivering  to  and  leaving  with 

a  true  copy  thereof,  and  at  the  same  time  showing  the  within  original, 

and  that  I  know  the  person  served  to  be  the  defendant    therein  named. 

Marshal, 
or, 

City  and  County  of  New  York,  ss.: 

,  being  duly  sworn,  says  that  on  the  day  of 

,  190  ,  at  No.  in  said  city,  he  served  the  within  sum- 

mons on  ,  the  defendant    therein  named,  by  de- 

livering to  and  leaving  with  a  true  copy  thereof,  and  at  the 

same  time  showing  the  within  original;   that  he  knew  the  person     so 
served  to  be   the  person      described   in   said   summons   as   defendant 
therein;   that  deponent  is  twenty-one  years  of  age,  and  a  resident  of 
said  city. 

Sworn  before  me,  this  day    ) 

of  ,   190    .  j" 

I  further  certify,  that  on  the  said  day  of  ,  190  ,  the 

same  being  the  day  mentioned  in  said  summons  for  the  return  thereof, 
the  parties  therein  named  respectively  appeared,  to- wit:   the  plaintiff 
by  ,  Esq.,  of  counsel,   and   the  defendant     by  , 

Esq.,  of  counsel,  and  the  said  plaintiff     complained  against  the   said 
defendant     as  follows:  and   the  said   defendant     answered 

as  follows : 

Issue  being  thus  joined  between  the  parties,  the  said  cause  was  there- 
upon adjourned  by  until  the  day  of  ,  190  , 
at  o'clock  in  the  noon,  and  thereafter  from  time  to  time 
until  the             day  of                        ,   190  . 

On  the  said  day  of  ,  190  ,  both  parties  again  appeared, 

and  [a  jury  having  been  duly  demanded  and  empaneled]  the  said  cause 
was  tried. 

The  exhibits  used  on  the  said  trial  are  annexed  and  the 

evidence  given  on  said  trial  is  as  follows: 

The  case  here  closed,  and  I  thereupon,  to-wit,  on  the 

day  of  ,  190  ,  rendered  judgment  in  favor  of  the 

and  against  the  ,  for  $  damages,  besides  $ 

costs,  and  $  extra  costs,  making  a  total  of 

dollars. 

All  of  which  is  respectfully  submitted. 

Dated  New  York,  ,   190  . 

Justice  of  the  Municipal  Court  of  the  City  of  New  York, 
Borough  of  ,  Judicial  District. 


532  Appendix  of   Fokms. 

No.  76. 
Warrant  in  Action  to  Foreclose  a  Lien  on  a  Chattel. 
Municipal  Court  Act,  SS  137,  1:58.) 
City  and  County  of  New  York,  ss.  : 

The  People  of  the  State  of  New   York,  to  any  marshal  of  the  city  of 
I  ork  to  whom    he  annexed  summons  is  delivered,  greeting: 

Whereas.  lias  made  application  to  the  Municipal  Court  of 

the    city   of    New    York,    borough    of  ,  District,    for    a 

warrant  of  attachment  in  favor  of  againsl   certain  property 

in  said  application,  and  the  mortgage  accompanying  the  same  described, 
according  to  the  provisions  of  the  Code  of  Civil  Procedure  and  the 
Municipal  Court  Act  of  said  city  relating  thereto,  for  a  debt  or  demand 
of  dollars,   and  cents,   being  the   amount   sworn 

to  by  the  applicant,  which  debt  arose  upon  ,  and  to  secure 

the  payment  whereof  the  said  mortgage  was  made  and  delivered,  and 
requisite  proof  by  affidavit,  and  undertaking  with  sufficient  surety  hav- 
ing been  executed.  You  are  therefore  required  to  seize  and  attach  on 
or  before  the  day  of  ,  190  ,  being  the  sixth  day  before 

the  return  day  of  the  summons  hereunto  annexed,  the  goods  and  chattels 
in  the  said  mortgage  described  and  named  in  the  schedule  indorsed 
hereon,  and  safely  keep  the  same  to  abide  any  judgment  that  may  be 
recovered  in  this  action.  And  do  you  make  return  of  your  proceedings 
hereon   to   the   said  court   at   the   courtroom  in 

said  city,  at  the  time  when  the  summons  issued  herein  is  returnable, 
and  have  you  then  and  there  this  precept. 

Issued  by  order  of  the  court,  this  day  of  ,  190  . 

Clerk  of  said  court. 

Granted  and   allowed  this  day  of  ,   190  . 

Justice. 

No.  77. 
Judgment  in   Action   to   Foreclose  Lien. 

(Municipal  Court  Act,   §    141.) 

I  find  that  the  plaintiff  has  a  lien  on  said  chattels  for  the  sum  of 
$  ,  and  render  judgment  for  the  plaintiff     for  the  amount 

thereof,  to-wit:  $  damages,  besides  $  costs,  and 

$  extra  costs,  and  direct  that  the  officer  to  whom  an  execu- 

tion herein  may  be  directed  sell  the  chattels  mentioned  in  said  mort- 
gage, and  satisfy  said  lien  and  the  costs,  and  that  the  proceeds  of  such 
sale,  less  his  fees  and  expenses,  be  applied  to  the  payment  of  said  lien 
and  the  costs  of  this  action,  and  that  any  surplus  money  received  there- 
from be  paid  to  the  clerk  of  the  court  for  the  benefit  of  the  owner,  if  the 
safe-keeping  thereof  is  necessary. 

Dated  ,  190  .  Justice. 


Appendix  of  Forms.  533 

No.  78. 
Execution  against  the  Property  —  Mechanic's  Lien. 

The  People  of  the  State  of  New  York,  to  any  marshal  of  the  city  of 
New  York,  greeting: 

Whereas,  judgment  was  rendered  on  the  day  of  ,  one 

thousand  nine  hundred  and  .  in  an  action  in  the  Municipal 

Court  of  the  city  of  New  York,  borough  of  ,  District, 

before  ,    justice,   between  ,    plaintiff,    and 

,  defendant,  in  favor  of  the  said  plaintiff  against  the 

said  defendant  ,  for  the  sum  of  dollars. 

And  whereas,  said  judgment  was  rendered  pursuant  to  the  acts  of  the 
Legislature  of  the  State  of  New  York,  in  an  action  to  enforce  a  me- 
chanic's lien  against  the  following  premises,  viz. : 

And  it  appears  by  the  complaint  on  file  and  forming  part  of  said 
judgment-roll   that  on  the  day  of  ,    190  ,   a  notice  of 

such  lien  was  duly  filed  with  the  clerk  of  the  county  of  New  York, 
wherein  the  above-named  defendant  was  described  as  the  owner  of  said 
premises,  and  it  further  appearing  that  the  sum  of  dollars 

is  now  actually  due  upon  said  judgment; 

Therefore,  we  command  you,  that  you  collect  the  amount  due  on  said 

judgment  out  of  the  personal  property  of  the  said  judgment 

debtor  and   the   separate   property  of   the   judgment  debtor 

upon  whom  the  summons  herein  was  served  and  pay  the 

same  to  the  said  plaintiff  . 

And  you  are  hereby  further  commanded  in  default  of  such  collection 
to  sell  the  right,  title,  and  interest  of  said  defendant  in  and  to  said 
above-described  premises  upon  which  the  claim  set  forth  in  said  com- 
plaint was  a  lien  at  the  time  of  the  filing  of  the  notice  prescribed,  and 
out  of  the  proceeds  thereof  to  satisfy  the  said  judgment.  And  you 
are  to  return  this  execution,  within  twenty  days  after  its  receipt  by  you, 
to  the  said  court,  with  a  certificate  thereon  indorsed,  stating  the  man- 
ner in  which  you  have  executed  the  same. 

Witness,  Esq.,  justice  of  said  court,  at  the  city  of  New 

York,   the  day   of  ,    one    thousand    nine    hundred   and 

Judgment,     $ 
Costs, 
Extra  costs, 

Clerk. 


534  Appendix   of   Forms. 

No.  79. 

Affidavit   and  Order  for  Substituted  Service,  and  Affidavit  of  Service 

Thereof. 

(Municipal    Court   Act,    §§    32,   33,   34,   35.) 

[Title  and  venue.] 

,  being  duly  sworn,  says  that  he  is  the  attorney 
for  the  above  plaintiff;  that  the  summons  in  this  action  was  issued  on 
the  day  of  ,  19      ;  that  said  defendant 

resides  at  No.         ,  borough  of  ,  city  of  New  York;   that 

an    alias    summons    was    duly    issued    in    said    action    on    the 
day  of  .   1!)      ;   that  proper  and  diligent  effort  has  been 

made  to  serve  the  summons  upon  the  defendant  ;   that  the 

place  of  his  sojourn  cannot  be  found  and  personal  service  cannot  be 
made,  or  [that  he  is  within  the  city  and  avoids  service  so  that  per- 
sonal service  could  not  be  made],  as  will  more  fully  appear  by  the 
affidavit  of  ,  who  is  a  person  not  a  party  to  the 

action,  and  the  return  of  ,  one  of  the  marshals 

of  the  city  of  New  York,  both  of  which  are  hereto  annexed  and  made 
a  part  hereof. 

Wherefore  deponent  asks  that  an  order  may  be  made  by  this   court 
for   the    service   of   the    summons    in    this   action    upon    the    defendant 
,  pursuant  to  the  provisions  of  chapter  580  of  the 
Laws  of  1902.     [No  previous  application,  etc.,  as  in  Form  No.  6.] 

Sworn    to   before   me,    this  ) 

day  of  ,19     .   j" 

Note. —  Annex  the  affidavit  of  a  person  not  a  party  to  the  action,  and 
the  return  of  a  marshal  showing  in  detail  what  efforts  were  made  to  ef- 
fect personal  service,  in  order  that  the  court  may  be  satisfied  that  proper 
and  diligent  efforts  were  made. 

Order. 

[Title.] 

Upon  satisfactory  proof  by  the  affidavit  of  ,  at- 

torney for  the  above  plaintiff,  verified  ,  and  the 

affidavit  of  ,  a  person  not  a  party  to  the  action, 

verified  ,  and  the  return  of  , 

one  of  the  marshals  of  the  city  of  New  York,  dated  , 

that    the    defendant  ,    resides    within    the    city    of 

New    York,    to-wit,    at    No.  ,    in    the    borough    of 

,  in  said  city  of  New  York;  that  said  action  was  brought 
in  this  court,  in  the  borough  of  district;   that 

the  summons  therein  was   issued  on  the  day  of  , 


Appendix  of  Fokms.  535 

19      ;  that  an  alias  summons  was  duly  issued  on  the  day  of 

,19      ;   that  proper  and  diligent  effort  has  been  made  to 
serve    the    summons    upon    the    defendant  ,    and 

that  the  place  of  his  sojourn  cannot  be  found  so  that  personal  service 
could  not  be  made,  [or  that  he  is  within  the  city  and  avoids  service,  so 
that  personal  service  could  not  be  made]. 

Ordered,  that  the  service  of  the  summons  [and  complaint]  herein  on 
the  defendant  ,  be  made  by  leaving  a  copy  thereof,  and  of  the 

order,  at  No.  ,  in  the  borough   of  , 

in  said  city,  being  the  last  known  place  of  residence  of  the  defendant 
,  with  a  person  of  proper  age,  if  upon  reasonable  applica- 
cation,  admittance  can  be  obtained,  and  such  person  found  who  will  re- 
ceive it.  or.  if  admittance  cannot  be  obtained,  nor  such  a  person  found, 
by  affixing  the  same  to  the  outer  or  other  door  of  the  defendant's  resi- 
dence, and  by  depositing  another  copy  thereof,  properly  inclosed  in  a 
post-paid  wrapper,  addressed  to  him,  at  his  place  of  residence,  in  a  post 
office  in  the  borough  in  which  he  was  last  known  to  reside. 

Affidavit  of  Service. 
[Title  and  venue.] 

,  being  duly  sworn,  deposes  and  says  that  he  is 
of  the  age  of  ,  and  upwards ;  that  on  the  day  of 

,19     ,  at  the  city  of  New  York,  he  served  the  summons 
[and  complaint]  in  the  above  action  on  the  defendant  therein, 

according  to  the  order  of  the  court,  dated  the  day  of  , 

19  ,  by  leaving  a  copy  of  said  summons  [and  complaint],  and  of  said 
order  at  No.  ,  in  the  borough  of  ,  in  said  city,  being 

the  last  known  place  of  residence  of  the  defendant,  with  ,  a 

person  of  proper  age,  to  wit,  of  the  age  apparently  of  years, 

on  the  day  of  ,   19     ,   at  o'clock   on   said 

day.  deponent  having  made  application  at  said  time  for  admittance  to 
said  premises,  and  having  obtained  admittance  and  finding  such  per- 
son there  and  who  received  the  same  [or,  that  he  could  not  obtain  ad- 
mittance, nor  find  such  a  person  and  affixed  the  same  to  the  outer  or 
other  door  of  the  defendant's  residence].  That  on  the  same  day  he 
deposited  another  copy  of  said  summons  [complaint]  and  order,  properly 
inclosed  in  a  post-paid  wrapper,  addressed  to  said  defendant  at  his  said 
last  known  place  of  residence,  at  ,  being  a  post  office  in  the 

borough  in  which  said  defendant  was  last  known  to  reside.  Deponent 
further  says  that  he  knew  the  person  so  served  as  aforesaid  to  be  the 
same  person  mentioned  and  described  as  defendant  in  said  summons. 

Sworn   to   before   me,   this 


day  of  ,  19 


•  I 


536  Appendix  of   Forms. 

No.  80. 
Undertaking  on  Opening  Default. 
(Municipal  Court  Act,  §  256.) 
[Title  of  actio>i.] 

Whereas,  on  the  day    of  ,    190  ,   in  the  Municipal 

Court  of  the  city  of  New  York,  borough  of  , 

District,  judgment  was  rendered  in  the  above-entitled  action  on  default 
in  favor  of  plaintiff  against  said  ,  defendant; 

And   whereas,  on  motion  of  said  defendant   said  court,  by  an  order 
herein  dated  the  day   of  ,   190  ,   opened   said  default 

and  allowed  said  defendant  to  come  in  and  defend  said  action  on  con- 
dition that  he  give  the  undertaking  in  such  case  required  by  statute; 

Now,  therefore,  said  defendant,  ,  as  principal,  and 

and  .    as    sureties,    do    hereby    jointly    and    severally 

undertake  to  the  said  plaintiff,  pursuant  to  the  statute  in  such  case 
made  and  provided,   that  such  defendant  will  not  sell,   as- 

sign, or  transfer  any  of  his  property  with  intent  to  hinder,  delay,  or 
defraud  the  plaintiff  in  the  collection  of  his  claim  or  demand  herein  if 
the  plaintiff  shall  prevail  on  the  trial  of  said  action,  and  that  we  will 
pay  the  amount  of  any  judgment  recovered  against  such  defendant  in 
such  action. 

Dated. 

[Add  affidavits  of  qualification  and  acknowledgment.] 


No.  81. 
Affidavit  as  to  Costs  and  Disbursements. 
(Municipal  Court  Act,  §  344.) 
[Title  of  action.] 

,  being  duly  sworn,  says  that  he  is  the  attorney  for  the 

in   said  action.     That  the  witness  fees  herein  amount  to 

dollars.        That  the  witnesses,  ,  , 

were  in  actual  attendance  upon  the  trial  of  said   action  in  this  court 

days,  to- wit,  on  .     That  the  travel  fees  charged 

amount  to  dollars.     That  the  distances  for  which  they  are 

claimed  are  as  follows: 

That  the  copy  of  was  actually  and  necessarily  used,  or 

was    necessarily    obtained    for   use.     That    the   item    of   disbursements 
was  necessarily  incurred,  and  is  reasonable  in  amount. 
[Jurat.] 

Note. — For  forms  as  to  "  Interpleader,"  "  Confession  of  judgment," 
"  Remittitur,"  and  other  forms,  see  Abbott's  Forms. 


INDEX. 


Abandonment  bonds.     (See  Bastardy  Bonds.) 

cases,  jurisdiction  to  commit,  277. 

of  married  woman  by  husband,  credit  of  husband,  46. 

by  married  woman  of  husband,  no  support,  4(j. 

requiring  further  security  for,  277. 
Abatement  of  action.     Loss  of  jurisdiction,  82. 

and  bar  answer,  257. 
Abbreviations  in  pleadings,  242. 

Accord  and  satisfaction,  defense  of,  must  be  pleaded,  258. 
Account  (See  also  Bill  of  Particulars),  exhibition  of,  at  instance  of  adverse 
party  may  be  ordered,  271. 

and  bill  of   particulars,  272. 

debits  and  credits,  272. 

detailed  statement,  272. 

or  instrument  for  the  payment  of  money,  251. 

stated,    implied   assent,   42. 

stated,  complaint   in  action,  251. 
Accounting,  money  deposited,  jurisdiction  in  action  for,  47. 

money  had  and  received,  jurisdiction  in  action  for,  47. 
Act,  construction  of  this,  466. 

how  may  be  cited,  name,  467. 

when  this  takes  effect,  467. 

statutory  construction,   141. 
Action.     (See  also  Jurisdiction,  Special  Proceeding,  and  the  various  subjects  of 
an  action.) 

another,  pending,  answer  of,  257. 

another,  pending,  ground  for  demurrer,  267. 

answer  of  title  in,  280.     (See  Answer  of  Title.) 

association,  against,  where  brought,  121. 

cause  of,  on  attachment,  203. 

improperly  joined,  demurrer,  268. 

what  causes  of,  may  be  joined  in  the  same  complaint,  245. 

cannot  be  continued  before  another  justice,  while  a  special  proceeding  may, 
113,  326. 

chattel,  to  recover,  209,  211. 

chattel,  to  recover,  and  no  requisition,  235. 

chattel,  to  recover  when  jury  of  twelve,  318. 

chattel,  damages  for  detaining,  211. 

[o37] 


538  Index. 

Action  for  damages,  chattel,  when  injured,  etc.,  by  defendant,  229. 
injury,  etc.,  no  defense   in  such  action,  234. 
marshal's  return  in  such  action,  evidence  therein,  23  4. 
against  marshal  by  third  person  claiming  title  in  replevin,  227. 
against  marshal  by  third  person,  when   summons  to  be  issued  in  such 

action,  227. 
against  marshal,  indemnity  to  marshal  in  such  action,  228. 
on  undertaking  in  replevin,  234. 
when  not  affected  by  failure  to  replevy,  233. 
to  foreclose  lien  on  a  chattel,  230.     (See  Lien  on  Chattel.) 
city  of  New  York,  by  or  against,  how  brought,  121. 
commenced,  how,  122. 
commenced,  when  deemed,  123. 
on  conditional  sale  agreement,  how  brought,  237. 
continued  from  day  to  day,  but  not  before  another  justice,  113,  326. 
consolidation  of,  on  removal,  89. 
corporation,  against,  where  brought,  121. 
costs  in  answer  of  title,  when,  280. 
and   demurrer,  200. 

for  difference  in  excess  of  jurisdiction  of  court,  266. 
discontinuance  of,  123. 
discontinuance  in  answer  of  title,  280. 
discontinuance  on  removal,  90. 
discontinuance,  right  to,  327. 
sureties  on  undertaking  in  replevin  liable,  50. 
dismissal  of,  nonappearance  of  plaintiff,  82. 
dismissal  of,  when  attachment  vacated,  206. 
enjoining,  42. 

for  fine  or  penalty,  where  to  be  brought,  58. 
by  fire  commissioner,  health  department,  etc.,  120. 
to  foreclose  lien  upon  a  chattel,  execution  against  person  not  to  issue, 

unless  summons  is  indorsed,  358. 
former,  costs  unpaid,  438. 
indorsement  on  summons,  58,  358. 
jurisdiction  of,  40-82. 
jurisdi  "tion,  no,  81-87. 

marshal  cannot  serve  summons  in  his  own,  388. 

mechanic's  lien,  summons  may  be  served  anywhere  in  the  State,  105. 
merits  of,  on  attachment,  204. 
milk  and  cream  cans,  121. 
new  cause  of,  defense,  amendment,  273. 
nonresidents,  121. 
by  poor  person,  155. 
practice  on  removal  of,  by,  155. 

process  in,  may  be  served  in  any  part  of  the  city  of  New  York,  105. 
real  party  in  interest,  must  be  prosecuted  in  name  of,  152. 


Index.  539 

Action  removed,  status  of,  92. 

removed,  not  as  one  brought  in  court  of  record,  93. 

revivor  of,  123. 

special  proceeding,  where  must  be  brought,  119. 

Statute  of  Limitations,  six  years,  56. 

transfer  of,  when  and  how,  120. 

transfer  of,  mandamus,  122. 

upon  undertaking  where  warrant  is  vacated,  200. 

where  must  be  brought,  119. 
Adjournments,  285. 

absence  of  witness,  286. 

affidavits  to  obtain,  286. 

on  amendment  of  pleadings,  272. 

arrest,  when  defendant  under,  285. 

where  commission  granted,  297,  298. 

conditions  may  be  imposed,  288,  437,  444. 

by  consent,  285,  286. 

costs  on,  287,  437,  444. 

default,  judgment  after,  82,  249. 

discretionary,  287. 

of  examination,  taking  deposition  of  witness  conditionally,  308. 

exception  to  refusal,  287. 

extending  time  to  answer,  demur  or  plead,  241,  242. 

illegal,  loss  of  jurisdiction,  82. 

of  justification  of  sureties,  93,  224. 

length  of,  285,  287. 

for  eight  days,  285. 

longer  than  eight  days,  undertaking,  287,  288. 

not  a  matter  of  right,  287. 

removal  of  action  before,  87,  88. 

to  allow  sureties  to  justify  on  undertaking  on  removal,  93,  224. 

trial  may  be  adjourned,  when,  285,  323. 

of  trial,  after  return  of  jury,  conditions  thereof,  321. 

undertaking  by  arrested  defendant  when  applying  for,  175. 

waiver  of  right  of  removal  by,  92,  93. 
Administrator,  jurisdiction  in  action  against,  80. 

counterclaim,  265. 

judgment,  265,  340. 
Administratrix  and  individually  may  unite  separate  contracts  in  same  com- 
plaint, 245. 
Affidavit,  additional,  on  application  to  vacate,  etc.,  attachment,  202,  203. 

additional,  or  supplement,  213. 

amendment  of,  52,  91,  207,  223,  231. 

arrest,  to  obtain  order  for,  169,  170. 

attachment,  to  obtain  warrant  of,  184-191. 

for  commission  to  take  testimony,  297. 


540  Index. 

Affidavit,  deposition  to  t;ike  testimony  conditionally,  304,  306. 

counter,  to  be  used  on  motion  to  vacate  order  of  arrest,  177. 

disbursements,  4  4 '. » . 

insufficiency  of,  in  motion  to  vacate  attachment,  203. 

of  merits,  when  accessary,  348. 

mistakes,  omissions,  defects,  and  irregularities  respecting,  52,  91,  171,  193, 
207,  223,  331,  109. 

replevin,  by  defendant  in,  '1-2. 

of  claim  of  title  by  third  person  in,  226. 

setting  aside,  215. 

substituted  service,  to  obtain  order  for,  134,  135,  136. 

and  undertaking  in  replevin,  211,  212,  216. 
Affirmative  relief  on  the  ground  of  fraud,  no,  86. 
Agent,  modification  of  contract  with  insurance,  discharges  surety,  52. 

may  make  affidavit  for  replevin  or  return,  217. 

verification  by,  270.  271. 
Agency  of  married  woman,  46. 

Aldermen,  hoard  of,  duty  of,  as  to  courthouse,  117. 
Alias  Summons.     (See  Summons.) 
Allowance  of  undertaking,  212.  216,  225. 
Amount  of  claim,  increasing,  91,  94. 

due,  must  be  stated  in  affidavit  for  attachment,  and  facts  shown,  184. 

jurisdiction  $500,  48,  40.  56,  58,  59,  62,  68,  71,  73,  80. 

jurisdiction,  excess,  waiver  of,  48,  85. 

on  removal  of  action,  87,  89,  93,  94. 

of  more  than  $250  may  be  recovered  after  removal,  94. 

of  claim,  increasing  after  removal,  94. 

of  recovery  on  removal  of  action  cannot  be  had  beyond  the  amount  stated 
in  the  complaint.  95. 

of  recovery  after  removal  limited  as  in  court  below,  93. 

reducing.  91. 

waiver  of.  in  excess  of  jurisdiction,  48,  85. 
Amendment  of  affidavit  of  service,  137. 

allowance  of,  is  mandatory  on  the  court,  273. 

answer  of  title,  278. 

of  bill  of  particulars.  243. 

costs  may  be   imposed  by  court  on,  272,  437,  444. 

of  commission  to  take  testimony,  296,  301. 

on  demurrer,  273. 

fictitious  name  in  summons,  124. 

of   judgment,  70,  71,  81,  125. 

of  judgment  after  filing  transcript,  359. 

justice  volunteering,  11,  273,  412. 

material  variance  between  pleading  and  proof,  273. 

mistake  in  name,  273. 

new  cause  of  action,  273. 


Index.  541 

Amendment   of  notice  of  appeal,  when  allowed,  405,  408. 

of  pleadings,  41,  93,  266,  272. 

of  pleadings  after  removal  of  action,  93,  95. 

payment,  273. 

remanding  art  ion  removed  for  amendment  of  defective  undertaking,  92. 

of  return  on  appeal.  -1  12. 

return  of  commission,  301. 

substituted  service,   134. 

in  summary  proceedings,  70. 

of  summons,  85,  124,  139. 

tort  and  conl  racl ,  273. 

variance  between  pleading  and  proof,  275. 

voluntary,  by  the  justice  of  return  on  appeal,  412. 

of  undertaking,  49,  89,  92,  94,  207,  212,  223,  225. 

of  undertaking  on  appeal,  409. 

of  undertaking  on  arrest,  170. 
Answer.     (See  also  Pleading.) 

abatement  and  bar,  257. 

admissions,  257. 

affirmative  defenses,  what  must  be  pleaded,  what  cannot  be  proven  under 
a  general  denial,  258-261. 

another  action  pending,  discontinuance  and  abatement,  257. 

bad,  good  enough  for  bad  complaint,  269. 

conclusion  of  fact,  258. 

contract,  performance,  conditions  precedent,  how  pleaded,  258. 

conversion,  258. 

consideration,  258. 

construing.  258. 

corporation,  258. 

defect  of  parties,  259. 

demurrer  to.  209. 

extending  time  to,  241,  242. 

fact  in  complaint.  259. 

failure  to.  does  not  prevent  defendant  from  moving  to  dismiss  complaint, 
324.  331. 

false  verification  of,  not  contempt,  101. 

form  of  denial,  259. 

fraud,  259. 

general  denial,  259,  260. 

inconsistent  defenses,  260. 

insufficient  defenses,  260. 

judgment,  how  pleaded,  200. 

misjoinder,  201. 

misnomer,  260. 

mitigation  of  damages,  260. 

new  matter,  200. 


542  Index. 

Answer,  nonjoinder,  261. 

part  of  complaint,  268. 

partial  defenses,  201,  268. 

possession,  258. 

removal  of  action,  amendment  of,  95. 

removal  of  action,  supplemental,  92. 

Statute  of  Frauds,  258. 

Statute  of  Limitations,  258. 

stricken  out  for  contempt,  98. 

test  of  sufficiency  of  defense,  262. 

of  title,  278. 

of  title,  action  to  recover  costs,  when,  280,  i.81. 

of  title,  amended,  278. 

of  title,  board  of  health,  278. 

of  title,  costs  where  title  to  real  property  comes  in  question,  281. 

of  title,  costs  after  discontinuance,  444. 

of  title,  defendant  to  deliver  undertaking,  278. 

of  title,  defense  of,  280. 

of  title,  discontinuance  of  action  in  answer  of  title,  280,  282. 

of  title,  dismissal  of  action,  281. 

of  title,  new  action  to  be  brought  in  Supreme  Court,  280. 

of  title,  same  cause  of  action,  and  defense  in  new  action,  282. 

of  title,  no  jurisdiction,  where,  comes  in  question,  85,  278. 

of  title,  one  or  more  of  several  "defenses ;  proceedings  thereupon,  282. 

of  title,  penalty  for  failure  to  deliver  undertaking,  281. 

of  title,  retention  of  undertaking,  278. 

of  title,  summons  and  complaint  to  be  delivered  in  new  action,  280. 

of  title,  title  appearing  from  plaintiff's  own  showing,  281. 

of  title,  to  sue,  262. 

of  title,  in  third  person  in  replevin,  228. 

of  title,  undertakings  in  action  to  recover,  valid  in  new  action,  282. 

unverified,  motion  to  dismiss  complaint,  245. 

usury,  262. 

waives  all  objections,  262. 

what  to  contain,  257. 

when  title  comes  in  question,  278,  279. 

when  title  does  not  come  in  question,  279. 
Appeal,  399-436. 

abuse  of  discretion,  402. 

amendment  of  notice  of,  when  allowed,  405,  406,  408. 

amendment  of  undertaking  on,  409. 

appealable,  what  is,  422. 

when,  will  not  lie,  and  questions  not  reviewable,  422. 

Appellate  Division  of  the  Supreme  Court,  leave  to,  432. 

Appellate  Term  may  increase  recovery,  401. 

of  argument,  ready  for,  421. 


Index.  543 

Appeal,  Bronx  brought,  First  District,  may  be  brought  in  Second  Judicial 
Department,  401. 

Brooklyn,  borough  of,  401. 

case,  settlement  on,  41G. 

clerk  appellate  court  to  return  papers  et  cetera;  remittitur,  421. 

construction  of  statute,  401. 

costs  on,  437,  448,  451. 

costs  on,  to  be  taxed  by  clerk,  402. 

cross,  402. 

Court  of  Appeals,  leave  to,  433. 

death,  where  adverse  party  has  died,  408,  417,  418. 

order  of  substitution  in  such  case,  419. 

default,  from  order  opening,  348,  355,  356,  402. 

discontinuance,  403. 

dismissal  of,  unauthorized,  41G. 

duty  of  justice  to  approve  undertaking  on,  409. 

exception  to  and  justification  of  sureties,  409,  410. 

hearing,  manner  of,  403. 

hearing  on  dismissal  thereof,  reversal  on  stipulation,  420. 

irregularity  of  notice  of,  405. 

judgment  must  be  appealed  from,  405. 

judgment  on,  power  of  court,  421. 

in  one's  own  favor,  402. 

jurisdictional  defects,  403. 

justice  dead,  when,  417. 

leave  to  appeal  to  the  Appellate  Division  of  the  Supreme  Court,  432. 

leave  to  appeal  to  the  Court  of  Appeals,  433. 

levy  upon  personal  property,  when  superseded  by,  411. 

in  mechanic's  lien  actions,  403. 

mistakes,  omissions,  defects,  irregularities,  and  general  rules  affecting  affi- 
davits, bonds,  and  undertakings,  52,  91,  171,  193,  331,  409. 

new  trial,  order  granting  or  denying  motion  for,  for  fraud  or  newly- dis- 
covered evidence,  354. 

notice  of,  when  sufficient,  405. 

notice  of,  when  not  sufficient,  406. 

notice  of,  irregularity  of,  405. 

notice  of,  omission  to  serve,  how  supplied,  amendment  of,  when  allowed, 
406,  408. 

objections,  what  may  be  raised  on  the,  423. 

objections,  what  cannot  be  raised  for  the  first  time  on,  423. 

offer  to  allow  judgment,  effect  of,  on,  404. 

offer  to  allow  judgment  after  removal  on,  91,  250. 

from  order,  403. 

from  order  denying  motion  to  open  default,  no,  must  appeal  from  judg- 
ment, 356. 

from  order  granting  or  denying  motion  for  new  trial  on  ground  of  fraud 
or  newly-discovered  evidence  appealable,  403. 


544  Ikdex. 

Appeal  from  order  opening  default,  remedy,  348. 

from  order  opening  default,  to  Bet  aside  verdict,  or  vacate  or  amend  judg- 
ment, and  for  new  trial  on  ground  of  fraud  or  newly -discovered  evi- 
dence, except  in  first  instance,  from  order  opening  default  and  vacating 
a  judgment  entered  thereon,  355. 

from  order  opening  judgment  taken  by  default,  406. 

no  appeal  from  such,  w  hen  defendant  not  served  with  summons,  400. 

payment   i  f  judgment,  404. 

poor  person,  159. 

reargument,  432. 

remittitur,  clerk  of  appellate  court  to  return  papers,  etc.,  421. 

restitution  upon  reversal,  419. 

restitution,  practice  in  such  case  explained,  419. 

return  on,  411. 

return  on,  cannot  be  contradicted  on,  12. 

return  on,  amending  or  correcting  on,  412. 

return  on,  rules  as  to,  416. 

rules  for  the  hearing  of  appeals,  First  Judicial  Department,  in  the  bor- 
oughs of  Manhattan  and  The  Bronx,  434. 

rules,  Second  Judicial  Department,  in  the  boroughs  of  Kings,  Queens,  and 
Richmond,  435. 

service  of  notice  of,  upon  respondent,  407. 

service  of  notice  of,  manner  of,  408. 

service  of  notice  must  be  on  opposite  party,  408. 

settlement  of  case  on,  41G. 

setting  off  costs  and  recovery,  420. 

stay  of  proceedings  on,  410,  411. 

several  claims,  404. 

in  summary  proceedings,  70. 

summons  not  personally  served,  404,  406. 

time  for,  407. 

time  to,  expiration  of,  405, 

time  to,  extension  of,  405. 

time  to,  not  in,  405. 

waived,  when  not,  403. 

waiver  of  motion  to  dismiss,  421. 

what  is  sufficient  execution  of  undertaking  on,  410. 

when  and  how,  may  be  taken,  399-404. 

Supreme  Court,  First  Judicial  Department,  400. 

Supreme  Court,  Second.  Judicial  Department,  400,  404. 

when  judgment  will  be  affirmed,  325,  326,  331,  335,  414,  424. 

when  it  will  be  reversed  —  grounds  for  reversal,  324,  325,  327,  335,  348, 
413,  427. 

unauthorized,  dismissal  of,  416. 

undertaking  to  stay  execution  upon  judgment,  408,  409,  410. 
Appearance  by  attorney,  41,  145,  440. 


Index.  545 

Appearance  by  attorney,  authority  of,  145. 
bond  for,  action  on,  49. 
and  consent,  79. 
coats  cannot  be  had  by  attorney  unless  written  notice  of,  filed,  or  verified 

complaint,  440. 
fictitious  name,  123. 
general,  confers  jurisdiction,  130. 
meaning  of  word,  144. 
of  parties,  144,  146. 
special,  not  on  the  merits,  242. 
waives  objection  to  summons,  125. 
Appellate  Division,  Second  Judicial  Department,  manner  of  hearing  appeals, 
403,  404. 
rules  of  the,  403,  434. 
leave  to  appeal  to,  432. 
Term,  manner  of  hearing  appeals,  403. 
Term,  rules  of  the,  403. 
Appendix  of  Forms,  481.     (See  Forms.) 
Arrest,  160-183. 

action  on  bond  on,  49. 

affidavit  and  undertaking,  upon  granting  order  of,  169. 

affidavit,  to  obtain  order  of,  contents,  170. 

affidavit,  identity  of  ground  of,  with  cause  of  action  cannot  be  tried  on, 

179. 
affidavit,  belief,  176. 

affidavit,  in  answer  of  title,  undertaking,  280. 
assignment  of  claim,  164. 
attorney,  when  privileged  from,  182. 
auctioneer,  when  liable  to,  163. 

bail  or  deposit  before  and  after  return  of,  172,  174. 
bail  may  be  examined,  173. 
bailment  and  conversion,  165. 
bankruptcy,  purchase  on  eve  of,  167. 
boarding-house  keeper's  lien,  165. 
broker,  163. 

chattels  wrongfully  detained,  165. 
chattels,  concealment  of,  176. 
check  sent  by  mistake,  165. 

Christian  name  of  plaintiff  must  be  stated  on  order  of,  177. 
complaint,  used  as  affidavit,  170. 
concealing  or  removing  property,  168. 
conditional  sale  agreement,  no  arrest  in  such  case,  162. 
conversion  of  check,  165. 
conversion  of  money  to  pay  note,  165. 
conversion  of  promissory  note,  165. 
counter-affidavits,  177. 

35 


54G  Index. 

Arrest,  credit  expires,  action  before,  164. 
credit,  false,  164. 

custody,  when  and  how  defendant  to  remain  in,  on,  174. 
defective  copies  of  papers  served,  no  ground  for  vacating,  178. 
election  day,  182. 
execution  on,  367. 
exemption  from,  182. 

extension  of  time  of  payment  of  debt  vacates  prior,  178. 
factors  and  commission  merchants,  163. 
of  female,  161. 
fiduciary  capacity,  178. 
fraud  in  contracting  debt,  166,  170,  178. 
fraud,  contemporaneous,  166. 
fraud  by  partner,  166. 
goods  on  credit,  171. 
goods,  stolen,  179. 
inconsistency,  180. 
identical  money,  179. 
identity  of  ground  of,  with  cause  of  action,  cannot  be  tried  on  affidavits, 

179. 
infant,  when  liable  to,  167. 
information  and  belief,  180. 
in  what  cases  may  be  granted,  161. 
is  to  punish  for  the  tort,  161. 
is  a  provisional  remedy,  161. 
joint  debtors,  167. 

judgment  for,  when  defendant  liable  to,  10,  344. 
judgment,  action  on,  for  fraudulent  debt,  162. 
jurisdiction  to  issue  or  vacate  order  of,  78. 
when  justice  is  a  witness,  172. 
marshal,  duties  of,  on,  173,  388. 
mechanic's  lien,  action,  162. 
misrepresentations,  167. 

motion  to  vacate,  when  it  can  be  made,  176,  179,  180. 
new  grounds  of,  181. 
order  of,  what  to  direct,  171. 
order  of,  statements  in,  181. 
order  of,  must  be  served  by  marshal,  160,  388. 
order  of,  where  may  be  served,  162. 
order  of,  in  action  to  foreclose  lien  on  a  chattel,  238. 
papers  to  be  delivered  to  arrested  person,  proceedings  thereon,  171. 
partners  cannot  arrest  each  other,  162. 
place  of,  162. 

plaintiff  to  be  notified  of,  172. 
principal  and  agent,  167. 
privileged  from,  181,  182. 


Index.  54.7 

Arrest,  right  of  action  on  undertaking  on  order  of,  52. 

scienter,  167. 

settlement  after  the  fraud,  cause  to  vacate  order  of,  181. 

sureties  on  undertaking  on.  must  justify  when  required  by  marshal,  388. 

suspicious  circumstances,  168. 

third  person,  claim  of,  163. 

undertaking,  sections  as  to,  182. 

undertaking  by  defendant  arrested,  on  applying  for  adjournment,  175. 

vacating  order  of,  179. 

witness  privileged  from,  290,  291. 
Assault,  no  jurisdiction  in  action  for,  73. 

negligence,  railroad,  recovery  for,  76,  82. 
Assignment  and  breach  of  bond  may  be  united  in  the  same  complaint,  246. 
Assistant  clerk.     (See  Clerk.) 
Association,  action  against,  where  brought,  121. 

verification  by,  271. 
Attachment*  183-208. 

action  on  undertaking  on,  50. 

action  on  undertaking  where  warrant  is  vacated,  200. 

affidavit,  requisite  of,  to  obtain,  184-191,  196. 

affidavit,  additional,  on,  202. 

affidavit,  counter,  204. 

affidavit,  insufficiency  of,  203. 

affidavit,  amount  due  must  be  specified  in,  184. 

amendment  of  undertaking  on,  207. 

amendment  of  warrant  of,  192. 

amount  due,  must  be  shown  by  facts  and  stated  in  affidavit,  184. 

bond,  when  insufficient  on,  199. 

can  be  allowed  before  service  of  summons,  186. 

cause  of  action,  203. 

certificate  of  defendant's  interest  to  be  furnished,  196. 

person  refusing  certificate  may  be  examined,  196. 

complaint,  204. 

for  contempt,  warrant  for,  recital  in  warrant,  99. 

copy  papers  served,  204. 

counter  affidavits,  204. 

effect  of  vacating  warrant,  206. 

erroneous,  no  ground  to  vacate  proper  judgment,  204. 

execution  of  warrant  of,  how  served,  193,  198,  397. 

expenses  and  counsel  fees,  200. 

fictitious  name,  204. 

fictitious  name,  cannot  be  granted  on,  183. 

intent,  204. 

irregularities,  204. 

judgment  on  bond,   on,   200. 

judgment  where  property  has  been  attached,  206. 


548  Index. 

Attachment,   jurisdiction  to  issue  or  vacate  warrant  of,  78. 

jurisdiction  depends  on  service  of  summons,  206. 

mailing  of  summons  without  posting  copies  on  door  of  defendant's  resi- 
dence, no  jurisdiction  is  acquired,  82. 

levied,  under  warrant  of,  194. 

marshal  may  maintain  action  on,  197. 

merits  of  action,  204. 

mistakes,  omissions,  defects  and  irregularities,  respecting  affidavits,  bonds, 
and  undertakings,  51,  91,   171,   193,  207,  331,  409. 

mistake  in  warrant  of,  205. 

motion  to  vacate,  when  may  be  made,  202,  203,  205. 

nonresident,  205. 

not  a  matter  of  right,  184. 

objections  to  sufficiency  of  the  bond,  etc.,  when  to  be  taken,  201. 

original  papers,  205. 

personal  service  of  process  attaching  vessel,  207. 

pleadings  as  to  sufficiency  of  affidavits,  205. 

property,  incapable  of  manual  delivery,  how  to  be  taken,  195. 

when  not  sufficient  property,  195. 

when  discharged,  property  to  be  returned  to  defendant,  197. 

provisional  remedy,  200. 

return  by  marshal  on,  201. 

return,  insufficient,  201. 

return,  sufficient,  201. 

subsequent  attaching  creditors,  206. 

second  application,  for,  195,  205. 

sections    applicable  to  undertaking,  207. 

service  of  summons,  and  warrant  of,  on  defendant,  193,  194,  198,  397. 

summons,  not  with  papers,  206. 

third  person,  claim  by,  bond,  and  delivery  thereupon,  199. 

undertaking  on,  192. 

undertaking,  amendment  of,   192,  193. 

undertaking  on,  by  defendant,   198. 

undertaking,  to  discharge,  199. 

undertaking,  sections  applicable  to,  207. 

undertaking,  by  third  party,  effect  of,  199. 

vacating,  or  modifying  warrant  of,  202,  203. 

vacating,  effect  of,  206. 

vessel,  personal  service  on,  of,  207. 

warrant  of,  192. 

■warrant,  contents  of,  191. 

warrant,  what  must  be  shown  to  procure,  184. 

warrant,  when,  may  be  granted,  183. 

where,  of,  may  be  served,  etc.,  193,  194,  198,  397. 
Attendant,  to  be  appointed  by  justice,  376.     (See  Janitor.) 

may  be  removed  by  justice  for  cause,  376. 


I^DEX.  54<> 

Attendant,  definition  of  "term,"  377. 

period  of- appointment  of,  376. 

salary  of,  37G. 

janitor,  not  an  officer,  378. 

rules  relative  to,  adopted  by  the  board  of  justices,  111,  382. 

not  to  practice,  146. 
Attorney,  agreement  as  to  compensation  of,  147. 

agreement,  cannot  be  deprived  of  his,  on  the  trial,  323. 

agreement,  in  poor  person  case,  155. 

appearance  by,  41,  145. 

appearance  by,  does  not  confer  jurisdiction,  130. 

authority  of,  to  appear,  145,  146. 

authority,  to  settle,  148. 

assignment,  in  poor  person  case,  157. 

cannot  be  sureties  or  become  bail,   148,  223,  224. 

cannot  recover  for  useless  work,  43. 

contempt  by,  may  be  punished  civilly,  97. 

contempt,  privilege  of,  from,  99. 

contempt,   writing   letter   to   judge   scandalizing   his   decision,   not   crim- 
inal, 99. 

contempt,  interrupting  trial,  99. 

costs,  belong  to  the,  437,  442. 

death  or  disability  of,  147. 

duty  to  act  as  guardian  of  infant  defendant,  148,  151. 

engagement  of,  not  excuse  for  not  urging  appeal,  421. 

fraud  of  clerk  of,  148. 

inexperience  or  negligence  of,  148. 

justice  may  act  as,  in  his  own  case,  13. 

lien  of,  148. 

lien,  notice  of,  not  necessary,  149. 

lien,  enforcement  of,  149. 

lien,  party  may  settle  notwithstanding,  149. 

lien,  no  jurisdiction  to  enforce,  82,  86. 

may  serve  summons,  137. 

must   have   filed   verified   pleading   or    written   notice   of   appearance,   to 
recover  costs,  437. 

none  but,  to  practice  in  New  York  city,  146. 

penalty  for  violation,  146. 

not  to  disclose  communications,  323. 

not  to  lend  his  name,  147. 

privileged  from  arrest,  148,  182. 

punishment  for  deceit,  147. 

punishment  for  willful  delay  of  action,  147. 

reading  to  jury  from  paper  not  in  evidence,  good  ground  for  reversal,  326. 

service  of  summons  upon  defendants,  84,  249. 

service  of  summons  on  attorney,  not  followed  by  appearance,  does  not  con- 
fer jurisdiction,  130. 


550  Index. 

Attorney,  services  to  wife,  husband  liable  for,  46. 
settlement  of  ease  on  appeal,  practice,  416. 
value  of  services  of,  149. 
verification  by,  270,  271. 

when  judgment  obtained  by  party  not  an,  void,  341. 
when  not  allowed  fees,  as  a  witness,  when,  455. 

Bail.     (See  Deposit;   Sureties.) 
Bailee,  liability  of,  43,  165. 

liability  of,  to  arrest,  when,   165. 

lien  of,  63. 

and  bailor,  tender  in  replevin  action,  209. 
Bailment,  lien,  63. 

Bankruptcy,  trustee  in,  may  bring  action  of  replevin,  59. 
Bastardy,  etc.,  bonds,  costs  in  actions  upon,  446. 

damages  in  actions  upon,  277. 

judgment  in  actions  upon,  277. 

jurisdiction  in  actions  upon,  54. 

jurisdiction,  has  it  been  conferred,  54. 

jury  trial  in  action  upon,  54. 

pleadings  in  action  upon,  277. 
Battery,  assault  and,   no  jurisdiction  in   action  to  recover,  73. 

assault,  negligence  of  railroad,  recovery  for,  76,  82. 
Benefit  Society,  complaint  upon  certificate  of,  251. 
Bills  and  Notes,  cimplaint  in  action  upon,  251. 
Bill  of  Particulars.     (See  also  Accounts.) 

court  may  order  written,  241,  242,  243. 

may  be  amended,  243. 

conversion  of  personal  property,  243. 

effect  of,  244. 

form  of,  244. 

knowledge  as  to  items,  244. 

noncompliance,  order  should  be  made.  244. 

object  of,  244. 

of  special  contract  will  not  be  granted,  244. 

variance  between  proof  and,  244. 

when  objection  to,  as  evidence,  available  on  the  trial,  324. 
Board  of  health,  and  answer  of  title,  278. 

of  justices,  duties  of,  etc.,  107. 

to  make  rules,  108. 

concurrence  of  majority  necessary  to  adopt  resolution  of,  111. 

of  aldermen,  duty  of  as  to  courthouse,  117. 
Boarding-house  keeper,  who  is,  64. 

lien,  conversion,  judgment,  10,  44. 

lien,  when  arrest  will  lie,  165. 

lien,  extent  and  limit  of,  64. 


Index.  551 

Boarding-house  keeper,   wife's  wearing  apparel,  64. 

action  to  enforce,  239. 
Bond.     (See  also  Undertaking.) 

abandonment,  jurisdiction  in  action  upon,  54. 

abandonment,  has  jurisdiction  been  conferred?,  54. 

conditioned  for  the  payment  of,  action  upon,  48. 

action  upon,  may  be  brought  for  each  installment,  48. 

bastardy  and  abandonment,  jurisdiction  in  action  upon,  54. 

bastardy,  has  jurisdiction  been  conferred?,  54. 

bastardy,  jury  trial  in  action  on,  314. 

bastardy,  pleadings  in  action  upon,  277. 

new  summons  in  action  on  bastardy,   129. 

breach  of,  and  assignment  may  be  united  in  same  complaint,  246. 

constable,  action  on,  for  seizing  exempt  property,  51. 

difference  between  undertaking  and,  53. 

of  marshal,  jurisdiction  in  action  upon,  55. 

of  marshal,  jury  trial  in  action  upon,  55. 

mistakes,  omissions,  defects,  and  irregularities  in,  52,  91,  171,  193,  331,  409. 

specific  breaches,  complaint,  252. 

surety,  action  upon,  49. 

synonymous  with  undertaking,  53. 
Boundaries  and  boroughs,  2,  3. 

division  into  boroughs,  3. 

names  of  justices,  clerks,  court  officials,  and  marshals,  with  their  resi- 
dences, days,  places  of  holding  courts,  and  telephone  number,  xii. 

of  the  Bronx,  districts  in,   16-18. 

of  Manhattan,  districts  in,  18-26. 

of  Brooklyn,  districts  in,  26-37. 

of  Queens,  districts  in,  37,  38. 

of  Richmond,  districts  in,  38. 
Books,  inspection  of,  289. 

corporation,  how  produced,  289. 
Boroughs.     (See  Boundaries). 

Brief   of  counsel,  no  disbursements  allowed  for,  452. 
Brokers'  commissions  on  sales  and  loan  of  real  property,  43. 
Bronx,  borough  of.     Names  of  the  justices,  clerks,  court  officials,  and  mar- 
shals, with  their  residences,  days,  places  of  holding  court,  and  telephone 
number,  xxv. 
districts  in  the  borough  of  The,  16-18. 

removal  of  action  to  City  Court,  87. 

First  District,  appeal  from  this  court  in,  to  be  brought  before  Appellate 
Division,   Second  Judicial  Department,   401. 
Brooklyn,  borough  of,  appeal  as  to,  401,  405. 

names  of  justices,  clerks,  court  officials,  and  marshals,  with  their  residences, 
places  of  holding  court,  and  telephone  number,  xxx. 

districts  in  the  borough  of,  26-37. 
Building  Code,  jurisdiction  of,  action  to  recover  penalties  for  violation  of,  56. 


552  Index. 

Carrier,  when  liable  for  conversion,  44. 
Case,  settlement  of,  on  appeal,  416. 
Causes  of  action  on  attachment,  203. 

complaint  does  not  st..te  facts  sufficient  to  constitute  a ;  demurrer,  268. 

improperly  united;  demurrer,  268. 

must  affect  all   parties,  248. 

to  be  separately  stated  and  numbered,  245,  252. 

what,  may  be  joined  in  same  complaint,  245. 
Certificate  of  defendant's  interest  on  attached  property  to  be  furnished,  196. 

person  refusing,  in   such   case,   to  be  examined,    196. 

certified  copy  of  paper  on  file  in  clerk's  office  evidence,  324. 

of  copies,  et  cetera,  form  of,  324. 

of  execution  of  commission,   300. 

of  execution  of  commission  a  sufficient  return,  300. 

of  fine  of  jurors  to  be  sent  to  commissioner  of  jurors,  381. 

of  search   for  records,  penalty,   et  cetera,  382. 

of  notary,  how  proven,  333. 

official,  is  evidence,  334. 

when,   of  public  officer   is  evidence,   335. 

penalty  of  physician  for  giving  false,  to  juror,  318. 
Charter,  sections  repealed,  467. 

sections   preserved,  480. 
Chattel.     (See  also  Replevin.) 

action  to  recover  a,  209-211. 

action  to  recover  a,  when  it  lies,  59. 

claim  of  title  by  third  person  to,  398. 

complaint  in  action  to  recover,  210,  225. 

complaint  in  action  when  chattel  injured  in  replevin,  230. 

concealment  of,  ground  for  arrest,  176. 

conditional  sale,  59. 

custody  and  control  of,  60. 

damages  in  action  to  recover,  60,  252. 

damages  when,  injured,  et  cetera,  by  defendant,  229,  230. 

and  damages,  complaint  for,  252. 

exception  to  sureties  may  be  served  on  marshal,  398. 

execution,  contents  of,  in  action  to  recover  a  chattel,  or  in  replevin,  367. 

fraudulent  acquisition  and  disposition  of,  60. 

interest  in  property,  60. 

jurisdiction  in  action  to  recover  a,  59. 

jury  of  twelve,  in  trial  of  action  to  recover  a,  318. 

lien  upon.     (See  Lien.) 

mingling  goods,  60. 

no  title  to,  61. 

possession  of,  61. 

promissory  notes  and  checks,  61. 


Index.  553 

Chattel,  property  accidentally  destroyed,  61. 

property  out  of  the  county,  62. 

penalty  for  wrong  delivery  by  marshal,  398. 

requisition  to  replevy  a,  398. 

execution  of  same,  398. 

return  of,  in   replevin,   222. 

return  of,  to  requisition,  398. 

sheriff,  action  against,  for  wrongful  seizure  of,  62. 

sureties  may  continue  action  to  recover,  62. 

tenants  in  common  of,  action  by,  to  recover,  62. 

trustee  in  bankruptcy  may  bring  action,  59. 

undertaking,  action  on  the,  to  recover  a,  398. 

value,   special  interest  in,  62. 

wife's  property,  62,  64. 
Chattel  mortgage,  when  no  action  can  be  brought  on,  85. 
Check,  conversion  of,  44. 

replevin  for,  61. 

drawn  without  funds  to  meet  it,  fraud,  71. 

deposit  withdrawn,  fraud,  71. 
Child,  right  of  parent  of,  to  bring  action  for  wages  of,  151. 
City  clerk,  bond  of  marshal  to  be  delivered  to  and  filed  by,  390. 

duty  of,  on  such  bond,  390. 

transcript  of  judgment  against  marshal  to  be  filed  with.  394. 
fee  therefor,  394. 

to  report  canceled  bond  to  mayor,  renewal  of  bond,  395. 
City  of  New  York,  action  by,  for  violation  of  corporation  ordinance,  120. 

action,  by  or  against,  how  brought,  121. 

boundaries,  boroughs,  powers,  rights,  and  obligations,  2,  3. 

borough  of,  divided  into  districts,  16. 

charter,  short  title  of,  2. 

corporations  consolidated,  territories,  2. 

corporations,  commissioner  of  docks  to  prosecute,  to  recover  penalties  in 
the  name  of  the,  56. 

corporation  counsel  may  issue  summons  in  his  own  name,  in  actions  by 
the,  127. 

corporation  counsel  has  charge,  et  cetera,  of  all  actions  in  behalf  of  the,  128. 

division  of,  into  boroughs,  5. 

fees,  property  of,  453. 

jurisdiction  in  actions  against,  80. 

name,  power,  and  rights  of  the  corporation  seal,  5. 

none  but  attorneys  to  practice  in,   146. 

process  may  be  served  anywhere,  in  any  part  of,  ID5,  396,  397. 

seal  of,  5. 
City  Court  of  the  city  of  New  York,  removal  of  action  to,  87. 
Civil  contempt,  how  punishable,  97,  99. 

distinction  between  civil  and  criminal  contempt,  99. 


554  Index. 

Claim  and  Delivery.     (See  Replevin.) 

of  title  by  third  person  for  replevin,   226. 

of  title  by  third  person  for  replevin,  proceedings  of  marshal  on,  226.  227. 
of  title  by  third  person,  action  against  marshal  on,  227. 
Clergyman    not  to  disclose  confession,  325. 
Clerk  of  appellate  court  to  return  to  this  court  all  papers  on  appeal,  remittitur. 

421. 
of  attorney  prohibited  from  being  bail,  or  surety,  223. 
of  this  court,  appointment  of,  and  assistant,  374-377. 
of  this  court  must  reside  in  district,  borough,   375. 
of  this  court  not  to  hold  any  other  office,  375. 
assistant  clerk  can  hold  two  offices  simultaneously,  377. 
of  this  court,  member  of  assembly  may  be  appointed,  378. 
of  this  court  must  file  bond  in  office  of  comptroller,  374. 
of  this  court  not  an  officer  of  the  city  government,  378. 
of  this  court,  term  of  office  of,  374,  378. 
of  this  court,  tenure  of  office  of,  378. 
cf  this  court,  definition  of  the  word,  377. 
of  this  court,  includes   assistant  clerk,  381. 
of  this  court,  no  second  assistant  clerk,  377. 
of  this  court  not  to  practice,  146. 
of  this  court,  certified    copies    of    papers    on   file    in    his   office,    evidence, 

113,  385. 
of  this  court,  certificate  of  fine  of  jurors  to  be  sent  to  commissioner  of 

jurors,  by,  381. 
of  this  court  to  give  certificate  when  judgment  and  execution  satisfied,  373. 
of  this  court,  when  papers  on  file  in  office  of,  evidence,  324. 
of  this  court,  duties  of  the,  380,  381. 
of  this  court,  duties  are    ministerial,   381. 

of  this  court,  duties  of  the,  and  assistant  clerks  to  administer  oatli3,  379. 
of  this  court,  duties  of  the,  where  employee  is  a  party,   154. 
of  this  court,  duties  of,  in  an  action  to  recover  a  chattel,  as  to  jury  ot 

twelve,  319. 
of  this  court,  duties  of,  as  to  ballots  of  jurors  summoned,  but  not  sworn, 

320. 
of  this  court,  duties  of,  in  keeping  and  paying  out  money,  et  cetera,  378. 
of  this  court,  duties  of,  in  summary  proceedings,  382. 
of  this  court,  must  indorse  summons  in  action  where  execution  may  issue 

against  the  person,  382,  383. 
of  this  court,  duties  of,  on  taxation  of  costs,  449. 
of  this  court,  must  tax  cos.ts  on  appeal,  402,  450. 
of  this  court,  must   deliver  papers  to   clerk   of  court   to   which  action  is 

removed,  87. 
of  this  court,  must  receive  deposit  of  amount  of  judgment  on  opening  of 

default,  355. 
of  this  court,  must  certify  undertaking  on  appeal,  411. 


Index.  555 

Clerk,  of  this  court,  must  make  return  on  appeal,  411. 

of  this  court,  to  notify  attorney  of  settlement  of  case  on  appeal,  41G. 
of  this  court,  must  keep  a  docket,  384. 

docket,  what  to  contain,  383,  384. 
of  this  court,  no  power  to  enter  judgment  in,  when,  384. 
of  this  court,  entries  in  docket,  how  to  be  made,  384. 
of  this  court,  must  keep  an  index  to  his  docket,  385. 
of  this  court,  docket  and  papers  to  be  delivered  to  his  successor,  385. 
of  this  court,  receipt  of  commission  by,  return  of  commission  by,  304. 
of  this  court,  to  open  and  file  commission  on  its  return,  296 
of  this  court,  to  keep  his  office  open,  when,  114. 
of  this  court,  Saturday  afternoon,  closing  of  office,  115. 
of  this  court,  to  search  files,  to  certify,  et  cetera,  325. 
of  this  court,  to  file  papers  received  on  submission  of  controversy  upon 

facts  admitted,  339. 
of  this  court,  must  issue  execution,  357. 
of  this  court,  successor    of,    may    issue    execution    on    former   unsatisfied 

docket,  385. 
of  this  court,  execution  against  joint  debtors,  where  all  not  served,  duty 

of,  to  indorse  on  summons  name  of  each  defendant  not  summoned,  362. 
of  this  court,  to  subscribe  renewal  of  execution,  368. 
of  this  court,  execution  in  favor  of  wage-earner,  clerk  to  issue  execution 

against  person  in  such  case,  et  cetera,  368. 
of  this  court,  extortion  of,  penalty  for,  382. 
of  this  court,  fees,  provisions  of  law  as  to,  383. 
of  this  court,  generally,  379,  461. 
of  this  court,  fees  payable  to,  381,  452,  461. 
fees,  tabulated  statement  of,  381,  383,  461. 
of  this  court,  no  service  by,  until  fees,  paid,  382. 
of  this  court,  to  collect  and  account  for  fees,  382,  383. 
of  this  court,  general  provision  as  to  fees  to  be  accounted  for,  382. 
of  this  court,  jury  fees  to  be  paid  to,  314. 
of  this  court,  must  draw  jury  from  undrawn  jury  box,  314. 
of  this  court,  list  of  trial  jurors  to  be  furnished  to,  317. 
of  this  court,  must  transmit  to  commissioner  of  jurors  certificate  of  fine 

imposed  on  juror  for  nonattendance  when  summoned,   318. 
of  this  court,  prospective  charges  and  fees,  449. 

of  this  court,  fees  are  the  same  whether  amount  over  or  under  $50,  452. 
of  this  court,  trial  fee  now  $1  in  all  cases  for  placing  cause  on  calendar, 

453. 
of  this  court,  taking  fees  for  services  not  rendered  or  prescribed  by  law 

prohibited,  382. 
of  this  court,  may  charge  fee  for  oath,  postage,  et  cetera,  379. 
of  this  court,  no  fees  to  his  own  use,  453. 
of  this  court,  mandamus  of,  381. 
of  this  court,  neglect  of  duty,  carelessness  of,  380. 


556  Index. 

Clerk,  of  this  court,  notice  of  appeal  to  be  served  on,  404. 

of  this  court,  office  may  be  closed  on  Saturday,  when,  382. 

of  this  court,  penalty  for  extortion,  382. 

of  this  court,  removal  of,  how  removed,  375,  379,  380. 

of  this  court,  removal  of,  charges  and  hearing  on,  380. 

of  this  court,  rules  relative  to,   111,  382. 

of  this  court,  salary  of,  375. 

of  this  court,  salary  of,  not  to  receive  any  fees  or  compensation  other 

than,  375. 
of  this  court,  may  charge  fee  paid  for  oath,  postage,  et  cetera,  379. 
of  this  court,  no  fee  for  administering  certain  oaths,  379. 
of  this  court,  no  fee  to  his  own  use,  453. 
of  this  court,  term  of,  374,  378. 
of  this  court,  to   issue  transcript,   358. 

of  this  court,  not  to  issue  transcript,  while  execution  not  returned,  357. 
of   this    court,   must    enter   in   transcript   of   judgment    where   defendant 

liable  to  arrest,  the  words,  "  defendant  liable  to  execution  against  his 

person,"  344,  382. 
of  this  court,  certification  of  transcript  by,  when  evidence,  et  cetera,  113, 

385. 
of  this  court,  trial  fee  cannot  be  recovered  back  from  the,  448. 
of  this  court,  undertaking  on  appeal  to  be  delivered  to,  410. 
Clerks  of  this  corrt,  names  of,  with  their  residences,  xxv. 
Code  of  Civil  Procedure,  applies  to  this  court,  117. 

action  to  recover  fine,  et  cetera,  for  violation  of  Sanitary  Code,  120. 
building,  costs,  440. 
sections  of  the,  not  applicable,  466. 
sections  repealed,  473. 
Commission  to  take  testimony,  295-304.     (See  also  Deposition.) 
affidavit  for,  297. 

affidavit,  authority  to  be  strictly  followed,  296. 
granting  of,  when  and  how,  296,  297. 
should  be  applied  for  promptly,  297. 
adjournment,  when  granted,  297,  298. 
amendment  of,  290. 
amendment  of,  return  of,  301. 
certificate  of  execution,  300. 
certificate,  sufficient  return,  300. 
clerk,  receipt  of,  by,  304. 
clerk,  to  open  and  file  on  return  of,  296. 
on  consent,  296. 
counsel  at  execution,  299. 
delay  in  return  of,  299. 
deposition,  et  cetera,  evidence,  302. 
direction  from  plaintiff  to  witness,  301. 
discretionary,  297. 


Index.  557 

Commission  to  take  testimony,  executed  and  returned,  how,  208,  299. 

evidence,  et  cetera,  302. 

interrogatory,  general,  302. 

interpleader,  283,  297. 

irresponsive  answer,  303. 

leading  questions,  303. 

letter  for  identification,  301. 

mistake  of  name  of  witness,  301. 

notice   of  application   for,  296,  297. 

objections  to  evidence,  302,  303. 

oral  questions,  296. 

order  suppressing,  302,  303,  326. 

papers  annexed,  299. 

power  of  commissioners,  303. 

process,  regarded  as,  amendable,  296. 

return  of,  amending,  301. 

second,  302. 

security  for  costs  as  a  condition  of  allowing,  297. 

subpoena  to  witness  within  the  State,   106. 

suppression  of,  when  deposition  may  be,  301,  326. 

seal,  296. 

witness,  in  the  city,  298. 

witness,  competency  of,  302. 

witness,  impeaching,  302. 

witness,  knowledge  of,  303. 

witness,  materiality  of,  303. 

witness,  mistake  in  name  of,  301. 

witness,  in  prison,  306. 

witness,  subpcena  to,  within  the  State,   106. 
Commission  on  revision,  report  of,  xix. 

Commissioner  of  docks  to  prosecute  to  recover  penalties  in  the  name  of  the 
city,  56. 

fire,  no  fees  or  costs  in  action  to  recover,  penalty,  440,  453. 
Commissioners  of  sinking  fund,  to  provide  place  for  holding  court,  114. 

fire,  action  to  recover  penalty,  et  cetera,  by,  120. 
Complaint.     (See  also  Pleadings.) 

account  or  instrument  for  the  payment  of  money  only,  251. 

account  stated,   251. 

affidavit  to  obtain  order  of,  may  be  used  as,  170. 

on  attachment,  204. 

bad  answer  good  enough  for  bad,  269. 

bills  and  notes,  251,  252. 

benefit  society,  252. 

bond,  252. 

causes  of  action  to  be  separately  stated  and  numbered,  245. 

causes  of  action,  what  may  be  joined  in  the  same,  245,  247,  248. 


558  Index. 

Complaint,  causes  of  action,  what  administratrix  and  individually  may  unite 
in  same,  246. 
contract  and  tort  may  be  united  in  same,  246,  343. 
conversion  and  freight  may  be  united  in  same,  246. 
money  lent  and  fraud  may  be  united  in  same,  246. 
parties  affected  alike  may  be  united  in  same,  246,  248. 
promissory  note  and  collateral  may  be  united  in  same,  246. 
several  breaches  may  be  united  in  same,  246. 

personal  injuries  and  injury  to  property  may  be  united  in  same,  246. 
injury  to  personal  property  and  fraud  may  be  united  in  same,  246. 
negligence  and  conversion  may  be  united  in  same,  247. 
chattels  with  or  without  damages  may  be  united  in  same,  247. 
claims  against  a  trustee  may  be  united  in  same,  247. 
claims  arising  out  of  same  transaction  may  be  united  in  same,  247. 
penalties  by  statute  or  ordinance  may  be  united  in  same,  247. 
what  must  appear  on  face  of,  to  unite  causes  of  action,  247. 
chattel  and  damages,  252. 
conclusions  of  law  not  to  be  pleaded,  252. 
construing,  253. 

contract,  performance,  conditions  precedent,  how  pleaded,  253. 
contract,  damages,  wages,  342. 
and  tort,  246,  343. 
corporation,  by  or  against,  276. 
custom  of  trade,  253. 
demand  for  relief,  253. 
demurrer  to,  268,  269. 
dismissal  of,  341,  342. 
dismissal  of,  in  replevin,  233. 
facts,  not  fictions,  must  be  pleaded,  253,  254. 

does    not    state    facts    sufficient    to    constitute    a    cause    of    action,    de- 
murrer, 268. 
forms  of,  254. 

framing,  deposition  for,  304. 
fraud,  254. 

hypothetical,  or  alternative,  not  allowed,  253. 
infant,  254. 

judgment,  how  pleaded,  253. 
landlord  against  tenant,  253. 
master  and  servant,  254. 
mechanics'  lien  action,  255. 
medical  expenses,  255. 
money  loaned,  255. 
money  loaned  and  fraud,  246. 
money  had  and  received,  255. 
necessaries  furnished  wife,  255. 
necessaries  of  infant,  255. 


Index.  559 

Complaint,  partners,  firm  name,  255. 
performance  of  contract,  255. 
private  statute,  256. 
replevin,  210,  215,  233,  256. 
representative  capacity,  256. 
special  damages,  246. 
time  essence  of  contract,  256. 
tort  and  contract,  343. 
use  and  occupation,  256. 

verified,  not  having  been  served,  plaintiff  cannot  take  judgment  by  de- 
fault without  proving  case,  327. 
waiver  of  certificate  of  architect  to  be  pleaded,  256. 
wnat  it  must  state,  251. 
what  must  be  specially  alleged,  256,  257. 
Commitment,  requisites  of,  99. 

summary  for  contempt,  104. 
Conditions  may  be  imposed  on  adjournment,   88. 

precedent,  how  pleaded,  274. 
Conditional  sale.     (See  also  Sale.) 

agreement,  no  order  of  arrest  to  issue  on  such,  162. 
reservations  in  contracts  for  sale  of  goods  and  chattels,  238. 
vendor  and  vendee,  238. 
Conditionally,  deposition  taking  testimony,  304-311. 
Conduct  of  trial.    (See  Trial.) 

Confession  of  judgment,  jurisdiction  to  render,  78. 
appearance  and  consent  is  not,  79. 
when  invalid,  79. 
Consent,  appearance  and.  79. 

commission  to  take  testimony  on,  296. 
deposition  by,  306. 

jurisdiction  cannot  be  acquired  by,  41. 
jurisdiction  to  render  judgment  by,  78. 
when  presumed,  286. 
Consideration,  258. 
Conclusion  of  fact,  what  is,  258. 

of  law  not  to  be  pleaded,  252,  253. 
Consolidation  Act,  sections  repealed,  468. 
note  as  to  corrections,  479. 
of  actions  on  removal,  89. 
Constitutionality  of  the  Municipal  Court,  7. 

of  statute  of  removal  of  action,  89. 
Controversy,  submission  of,  upon  facts  submitted,  42. 
Construction   (of  this  act),  466. 
Contempt  of  court,  criminal,  96,  326. 
punishment  for,  96,  326. 
punishable  civilly,  97,  103. 


560  Index. 

Contempt  of  court,  who  may  l>c  punished  civilly  for,  97,  103. 

in  view  of  court,  how  punished,  96,  99,  103. 

out  of  sight  of  the  judge,  103. 

distinction  between  civil  and  criminal,  99. 

court  may  strike  out  answer  for,  98. 

if  court  has  jurisdiction,  adjudication  final,  98. 

court  must  issue  mandate  for,  100,  105. 

false  swearing  and  perjury  is,  100,  103. 

failure  to  pay  money  into  court  is,  102. 
immaterial  and  irrelevant  question,  cannot  be  punished  for,  105. 

marshal,  when  deemed  guilty  of,  389. 

error  or  mistake  of  marshal,  371. 

order  for,  requisites  of,  et  cetera,  102,  103,  105. 

service  of  order  for,  failure  to  obey,  103. 

order  for,  erroneously  granted,  no  excuse  for,  100. 

party  under  subpoena  not  producing  papers,  is,  104. 

stay  of  proceedings,  disregard  of,  103. 

stenographer,  when  may  be  punished  for,  103. 

technical,  what  is  a,  104. 

warrant  of  attachment,  need  not  recite  the,  99. 

witness  or  juror,  refusal  to  be  sworn,  attend,  or  answer  material  ques- 
tion, is  a,  104. 
Contract,  authority  of  employee  to  make,  43. 

breach  of,  43. 

complaint  on,  253. 

conditional  sale,  when  no  action  can  be  brought  on  written,  85. 

conditions  precedent  in,  how  pleaded,  274. 

damages,  measure  of,  in  action  for  breach  of,  45. 

express  and  implied,  complaint  on,  253. 

jurisdiction  of  action  to  recover  damages  for  breach  of,  42. 

no  jurisdiction  to  reform  written,  86. 

performance,  44,  255,  258. 

performance,  conditions  precedent,  how  pleaded,  253,  258. 

effect  of  refusal  to  perform,  43. 

excusing  performance,  44. 

terms  of,  48. 

title,  action  to  recover  damages  for  breach  of,  to  convey  goods,  48. 

and  tort,  amendment  of  complaint,  273. 
Conversion,  admission  in  answer  of  demand,  258. 

agent  liable  for,  44. 

authority  for,  44. 

arrest  for,  of  property,  170. 

bailee,  liability  of,  for,  42. 

bill  of  particulars  will  be  ordered  in  action  for,  243. 

boarding-house  keeper's  lien,  10,  345. 

boarding-house  keeper's  lien,  action  to  enforce,  239. 

boarding-house  keeper's  lien,  judgment,  44. 


Index.  561 

Conversion,   of  check,  44. 

and  contract  cannot  be  counterclaim,  263. 
damages  and  costs  in  action  for,  345. 
definition  of,  44. 

judgment  for,  what  must  be  inserted  in,  345. 
pledgee,  when  liable  for,  44. 
purchasing  stolen  horse  is,  45. 
value,  proof  of,  in  action  for,  45. 
Copy  papers  served  on  attachment,  204. 

defective,  served  no  ground  for  vacating  order  of  arrests,  178. 
Corporation,  admission  by  member  of,  on  trial,  326. 
books  of,  how  produced,  289. 
complaint  in  actions  by  or  against,  276. 
counsel,  may  issue  summons  in  his  own  name,  127. 
counsel,  has  charge,  et  cetera,  of  all  actions,  et  cetera,  in  behalf  of  the 

city  of  New  York,   128. 
defendant,  in  what  district  action  to  be.  brought,  120. 
foreign,  book  of,  when  evidence,  329. 
jurisdiction  against  domestic  or  foreign,  80. 
misnomer  of,  when  waived,  277. 

officer  of  domestic,  how  to  obey  sucpcena  duces  tecum,  291. 
ordinance,  violation  of,  where  action  to  be  brought,  120. 
proof  of  corporate  existence,  when  necessary,  276. 
proof  of  corporate  existence,  when  unnecessary,  326. 
verification  by,  270,  271. 
waiver  of  corporate  name,  258. 
Costs  and  fees,  436-464.      (See  also  Disbursements;  Fees.) 
on  adjournment,  287,  444. 
action  to  recover,  in  answer  of  title,  280. 
affidavit  respecting  disbursements,  449. 
amendment  as  condition  of  allowing,  272. 
amendment  of  pleading,  444. 

answer  of  title,  to  real  property  in  question,  281,  446. 
answer  of  title,  action  to  recover  costs,  280. 
answer  of  title,  dismissal  of  complaint,  445. 
answer  of  title,  discontinuance  of  action,  444. 
answer  of  title,  new  action,  445. 

answer  of  title,  recovery  under  $50  in  such  action,  446. 
on  appeal,  437,  448. 
on  appeal,  to  whom,  450. 
on  appeal,  on  affirmance,  must  be  given,  451. 
on  appeal,  new  trial,  451. 

on  appeal,  when  in  discretion  of  the  court,  400. 
on  appeal,  clerk  to  tax  costs  on,  402,  450. 

attorney  must  file  verified  pleading  or  written  notice  of  appearance  in 
order  to  recover,  437,  442. 
36 


562  Index. 

Costs  and  fees,  belong  to  attorney,  437,  442. 

bastardy  and  abandonment  bonds,  in  action  upon,  446. 

bond  of  marshal  on  prosecution  of,  393,  457. 

Building  Code,  in  action  for  penalty  for  violation  of,  440. 

clerks'  fees,  461. 

default,  opening,  354. 

to  defendant,  441,  442. 

when  defendant  entitled  to  increased,  442. 

on  demurrer,  443. 

disbursements,  affidavit  for,  449. 

after  discontinuance  in  answer  of,  281. 

employees'  action,  no  fees,  453. 

expert,  454. 

disbursements  for  service  of  expert  witness   cannot  be  taxed,  454. 

failure  to  pay,  287. 

fees  payable  to  clerk,  452. 

fees,  property  of  city,  453. 

fees,  on  docket  of  judgment  in  county  clerk's  office,  454. 

fees,  jurors',  454,  461. 

fees,  summary  proceedings,  458. 

fees,  witness,  454. 

fire  commissioner,  to  recover  penalty,  440,  453. 

former  action,  costs  unpaid,  stay,  438. 

guardian   ad  litem,  responsibility  for,  438. 

in  health  department  action,  438. 

increased,  to  defendant,  when,  442. 

interpleader,  283. 

judgment,  offset,  439. 

jurisdiction,  want  of,  when  costs  allowed,  438. 

jurors'  and  jury  fees,  454,  461. 

keepers'  fees,  457. 

lien  for,  438. 

marshal's  fees,  456,  463. 

marshal's  fees,  taxation  of,  by  court,  448. 

marshal,  not  to  bargain  about  his  compensation,  457. 

meaning  of  term,  438. 

mechanics'  lien  action,  69,  439. 

as  to  nurse,  et  cetera,  453. 

offer  by  defendant,  445. 

offer  by  defendant,  if  plaintiff  fails,  250. 

on  opening  default,  354. 

parties,  attorneys,  when  not  allowed  fees,  455. 

party,  when  prevailing,  to  recover,    437. 

party,  appearing  in  person,  entitled  to,  438. 

sums  allowed  to  either  party,  to  plaintiff,  440,  441. 

when  neither  party  to  recover,  439. 


Index.  563 

Costs  and  fees,  poor  person,  in  favor  of,  159,  459. 

liability  for,  in  such  case,  159. 

security  for,  in  such  case,  156. 

stay  for  nonpayment  of,  in  such  case,  159. 

printing   brief,  disbursements   for,  not   taxable,   452. 

prospective  charges  and  fees  on  docket  in  county  clerk's  office,  449. 

on  removal  of  action,  89. 

security  for,  as  condition  for  commission,  297. 

security,  when  cannot  be  required  on  removal  of  action,  95. 

section  121  has  no  bearing  on  the  question  of,  231. 

stenographers'  fees,  455. 

stenographers'  fees  cannot  be  allowed  for  furnishing  minutes  of  stenog- 
rapher to  justice,  not  taxable,   455. 

summary  proceedings,  fees  in,  458. 

tabulated  statement  of  costs  and  fees,  437-448,  449,  451,  453,  457,  458. 

taxation  of,  447. 

review  of  taxation  of,  448. 

duty  of  clerk  on  taxation  of,  449. 

title  to  real  property  comes  in  question.     (See  Costs;   Answer  of  Title, 
etc.,  ante.) 

trial  fee  cannot  be  recovered  back  from  the  clerk,  448. 

witness'  fees,  463. 

defaulting  witness,  fees  on  warrant  of  attachment  against,  457 

workingman,  439. 

in  action  by  working-woman,  447. 
Counsel,  relationship  of,  10. 

at  execution  of  commission,  299. 
Counterclaim  for  affirmative  relief,  264. 

amount  is  in  excess  of  court's  jurisdiction,  where,  266. 

arrest,  not  ground  to  vacate  order  of,  177. 

what  causes  of  action  may  be  united  in,  247. 

conversion  and  contract,  263. 

denned,  262. 

demurrer  to,  not  necessary,  266. 

dismissal  of  action,  when  justice  should  have  dismissed  action,  342. 

equal  or  unequal,  when,  340. 

executor  or  administrator,  when  plaintiff  is,  265. 

incapacity,  263. 

judgment,  when  demand  or,  are  equal  or  unequal,  264. 

partnership,  263. 

reply  to,  not  necessary,  269. 

representative  capacity,  when  defendant  is  sued  in,  265. 

rules  respecting  the  allowance  of,  263. 

Statute  of  Limitations,  263. 

summary  proceedings,  263. 


56-i  Index. 

County  clerk  must  enter  in  docket  in  judgment  where  defendant  liable  to 
arrest,  the  words,  "  defendant  liable  to  execution  against  his  person," 
where  such  transcript  filed  with  him,  344. 

when  may  issue  execution,  357. 

duty  of,  on  filing  transcript,  358. 

duty  of,  on  judgment  docketed  against  joint  debtors,  where  all  not  served, 
362. 

docketing  judgment  in  another  county,  duty  of,  364. 

to  issue  transcript  of  judgment  against  marshal,  394. 

prospective  charges  and  fees,  449. 

fees  of,  on  docket  of  judgment,  454. 
County  Court,  removal  of  action  to,  when,  87. 
Court.     (See  also  Judge;  Justice;  Municipal  Court.) 

adjournment,  may  impose  costs  as  condition  for,  437. 

amendment  may  impose  costs  as  condition  for,  or  adjournment,  437. 

appellate,  power  of,  on  appeal,  400,  401. 

appellate,  may  compel  justice  to  settle  case  when  out  of  office,  417. 

appellate,  when  justice  dead,  remedy  by,  417. 

appellate,  clerk  of,  to  return  to  this  court  all  papers  on  appeal,  421. 

appellate,   remittitur  from,  421. 

bond  of  marshal  may  be  prosecuted,  in  what,  393. 

contempt  of,  criminal,  96. 

contempt,  in  view  of,  how  punished,  96. 

keeping  it  open  for  return  of  attachment,  100,  115. 

must  issue  mandate  for  contempt,  100,  105. 

days,  places  of  holding,  and  telephone  number,  xxv. 

keeping  open,  10. 

decision,  has  fourteen  days  in  which  to  render  judgment,  311. 

when  defendant  under  arrest,  must  decide  immediately,  311. 

after  time  limited  for  decision,  312. 

consent  to  decide  after  time  limited,  312. 

failure  to  decide,  312. 

stipulation  that,  may  have  further  time  to  decide,  317. 

default,  may  open,  347. 

default,  affidavit  of  merits  necessary,  348. 

default,  conditions  upon  opening,  354. 

further  hearing,  when  no  power  to  open  case  for,  324. 

guardian  ad  Utem,  must  appoint,  149. 

holding,  by  whom  held,  112. 

holding,  where  held,  114. 

holding  in  case  of  pestilence,  war,  et  cetera,  115. 

judgment  according  to  justice  of  case  must  be  rendered  by,  et  cetera,  421. 

juror  summoned,  who  fails  to  attend,  fine,  317. 

jury  trial,  316. 

jury  trial,  within  what  time,  may  be  directed  by,  316. 

justice  to  have  access  to,  et  cetera,  of  courthouse,  117. 


Index.  565 

Court,  justice  dead,  remedy  on  appeal,  when.  417. 

when,  may  direct  jury  trial,  and  within  what  time,  316. 

when,  has  functions  of  a  jury,  when  both  parties  request  verdict,  328. 

leave  to  appeal  to  the  Appellate  Division  of  the  Supreme,  432. 

leave  to  appeal  to  the  Court  of  Appeals,  433. 

mandamus  of,  312. 

Municipal,  of  the  city  of  New  York,  5 

Municipal,  constitutionality  of,  7. 

Municipal,  created,  6. 

Municipal,  not  a  new,  7. 

Municipal,  sessions  to  be  held  in  each  district,  16. 

new  trial,  may  grant  or  deny  motion  for  new  trial  on  ground  of  fraud 
or  newly-discovered  evidence,  354. 

officials,  names  of,  and  their  residences,  xxv. 

power  of,  limited,  42. 

when  no  power  to  open  case  for  further  hearing,  324. 

referee,  no  power  to  appoint,  or  order  payment  of  referee's  fees,  355. 

retrial,  313. 

Saturday  afternoon,  closing  of,  115. 

sittings  of,  to  be  public,  116. 

Sunday,  not  to  be  open  on,  116. 

if  last  day  fall  on  Sunday,  judgment  must  be  given  on  previous  day,  313. 

stay  of  proceedings  may  be  granted,  354. 

setting  off  costs,  duty  of,  recovery  on  appeal,  420. 

to  tax  marshal's  fees  for  expenses  in  taking  care  of  replevied  property, 
448. 

verdict,  may  direct,  70,  71. 

verdict,  when  may  direct,  346,  347. 

verdict,  has  power  to  set  aside,  and  grant  new  trial,  354. 
Courts  abolished,  6. 
Creditors,  subsequent  attaching,  206. 
Crime,  conviction  of,  not  to  exclude  witness,  327. 
Criminal,  contempt  of  court,  96. 

contempt  of  court,  how   punished,  96. 

contempt,  punishment  for,  96. 

contempt,  in  view  of  court,  96. 

distinction  between  civil  and  criminal  contempte,  99. 

conversation,  no  jurisdiction  in  action  for,  73. 
Custom  of  trade  must  be  pleaded,  253. 

Damages,  abuse  of  horse,  action  for,  74. 
consequential,  82. 

injury  to  property,  action  to  recover,  73. 
measure  of,  in  action  for  breach  of  contract,  46. 
for  detention  of  machines,  230. 
value  of  property  in  replevin,  60. 


566  Index. 

Damages,   mitigation  of,  pleading,  260. 

for  personal  injuries,  action  to  recover,  73. 

how  ascertained  on  default  and  replevin,  231. 

for  detaining  chattel,   action  to   recover,  211,   230. 

when  chattel  injure!,  et  cetera,  by  defendant,  229. 

to  be  fixed  by  judgment,  on  verdict  in  replevin,  230. 

in  actions  upon   bastardy  and  abandonment  bonds,  277. 

special,  not  a  separate  cause  of  action,  246. 

special,  must  be  alleged,  256,  257. 
Date,  in  verification,  271. 
Day,  return  of  summons,  139. 

mode  of  computing,  140. 

night-time,   140. 

law  takes  notice  of  fractions  of,  when  there  are  conflicting  rights,  358. 
Death  or  removal  of  justice  not  to  impair  proceedings,  et  cetera,  113. 

appeal,  where  adverse  party  has  died,  408. 

proceedings  on  appeal,  in  case  of,  408. 
Debtors.     (See  Joint  Debtors.) 
Decedent's  debts,  no  jurisdiction  in  action  for,  quaere,  45. 

no   jurisdiction  in  action  to  charge  next  of  kin,  83. 
Deceit,  jurisdiction  in  action  for,  71.     (See  Fraud.) 

when  action  lies,  71. 

judgment  upon  written   complaint  in  action  for,  249. 
Decision  of  justice  not  in  time,  82,  84.     (See  Justice.) 

when  justice  to  render,  311. 

or  judgment,  or  verdict  in  replevin,  what  to  state,  230,  231. 
Default,  347-352. 

in  answer  does  not  preclude  motion  to  vacate  order  of  arrest,   177. 

judgment  by,   verified  complaint  must  be  served,  or  plaintiff  must  prove 
his  case,  before,  can  be  taken,  327. 

judgment  by,  344. 

jurisdiction  to  open  a,  81. 

court  may  open,  and  impose  conditions,  347,  354,  451. 

affidavit  of  merits  necessary,   348. 

appeal  from   order  opening,  remedy,  348,  402. 

appeal  lies  from  judgment  entered  on,  402. 

what  is  a,  349. 

discretionary,  349. 

denial  of  motion,  with  leave  to  renew  remedy,  349. 

damages,  how  ascertained  in  replevin,  231. 

dishonest  defenses,  et  cetera,  349. 

usury,  et  cetera,  349. 

technical  objections,  349. 

good  faith,  doubtful  defense,  350. 

excuse  for  opening,  350. 

sufficient  excuse,  350. 


Index.  507 

Default,  statute   is   remedial,  352. 

insufficient  excuse,  331. 

laches,  351. 

not  matter  of  right,  352. 

poor  person,  352. 

summons  not  personally  served,   remedy,   352,  406. 

writ  of  prohibition  will  not  lie    to  prevent  judge  from  opening,  352. 
Defects,   mistakes,  et  cetera,   in  affidavits,  bonds,   and  undertakings,  52,   91, 

171,  193,  207,  212,  223,  331,  409. 
Defect  of  parties,  259. 

Defective  undertaking,  remedy  for,  after  removal,  94. 
Defendant,  in  what  district  action  must  be  brought  against,  119. 

when  allowed  to  defend  in  substituted  service  cases,  136. 

who  may  be   made   a  party,   152. 

department  of  health,  153. 

jointly  liable,  153. 

where  an  employer  is  a  party,  154. 

when,  may  defend  as  a  poor  person,  157. 

on  his  arrest  must  remain  in   jail,  until  final  judgment,  unless  bail  is 
given  or  deposit  made,  174. 

property  taken  on  discharged  attachment  to  be  restored  to,  197. 

service  of  summons,  and  warrant  of  attachment  on,  by  marshal,   198. 

undertaking  by,  on  attachment,  198. 

cannot  be  arrested,  nor  property   sold  on   execution,   after  twenty  days 
from  issue,  or  renewal  of  execution,  370. 

costs,  when  allowed  to  the,  440,  441. 

when  entitled  to  increased  costs,  443. 

must  unite   in  application  for  removal  of  action,  87. 

proceedings  where  they  fail  to  unite,  87. 

when  to   except  to   sureties  in  replevin,   proceedings   thereupon,   221. 

may  reclaim  chattels  in  replevin,  proceedings  thereupon,  222. 

may  demand  judgment  for  return  of  chattel  in  replevin,  228. 

may  offer  to  allow  judgment  or  compromise,  250. 
Defenses.     (See  Answer.) 
Definition,  annulled,  200. 

appearance,   144. 

attendant,  377. 

attorney,  465. 

causes,  323. 

clerk,  377,  465. 

conversion,  44. 

corporation,  465. 

costs,  438. 

counterclaim,  262. 

definitions,  465. 


568  Index. 

<  < 

Definition,  discretion,  402. 

district,  224,   465. 

householder,  224. 

injury  to  property,  74.  ."" 

judicial  notice,  330. 

jurisdiction,   41. 

mark,  465. 

mandate,  100,  397,  398. 

marshal,   389,   465. 

oath,  465. 

person,  465. 

perjury,  318. 

signature,  465. 

subscription,  465. 

writing,  338,  465. 
Demand  of  transfer  of  action,  120. 

when,  to  be  made  for  jury  trial,  314. 

in  replevin    action,  213,  214. 

for  relief  in  complaint,  253. 
Demurrer,  266-269. 

amendment  must  be  premitted  on,  273. 

costs   on,   443. 

extending  time  to  demur,  241. 

form,  269. 

when  disallowed,  court  must  grant  leave  to  plead,  241,  242. 

well  found,  court  must  permit  pleading  to  be  amended,  242. 

grounds  for,  266,  267. 

incapacity  to  sue,  263. 

joint,   267. 

when  defendant  may  demur,  266,   267. 

and  answer,  266. 

part,  267. 

several  defenses,  267. 

test  of,  268. 

to  complaint  must  specify  grounds  of  objection,  268. 

to  all   or  part  of  complaint,   268. 

to  counterclaim,  not  necessary,  269. 

when  plaintiff  may  demur  to,  269. 

bad   complaint,   269. 

to  separate  paragraph,  268. 
Denial  in  answer,  form  of,  259. 

general,   259,   260. 
Department  of  health,  action  for  and  penalties,  57.     (See  Health  Department.) 
Deposit  of  amount  of  offer,  to  allow  judgment  with  clerk,  250.     (See  Bail.) 
Deposition,  304-311.    (See  Commission.) 

where  it  may  be  suppressed,  301. 


Index.  569 

Deposition,  where  it  may  be  taken,  106. 

et  cetera,  evidence,  302. 

order  suppressing,   302,   303. 

to  take  testimony   conditionally,   304. 

effect  of,  310. 

framing  complaint,  304. 

affidavit  on  application  for,  305,  308. 

by  consent,  306. 

objections  to,   when   to  be  taken,   310. 

order  for  examination,  306,  307. 

oral  examination,  310. 

vacating  order  for  examination,  307. 

punishment  for  disobeying  order,   307. 

witness'  fees  on,  307. 

waiver  of  irregularities,  310. 

service  of  order,  307,   308. 

adjournment  of  examination,  308. 

good  cause  shown,  308. 

party   confined   in   prison,   306,  308. 

refusal  of  person  examined  to  answer,  309. 

rules  for  examination,  309. 

objections  to,  when  to  be  taken,  309. 

manner  of  taking,  and  return  of,  309. 

may  be  read  in  evidence,  when,  309. 

notice  of  application  for,  306. 
Description  of  property  in  replevin,  214,  223.     (See  Property.) 
Designation  by  resident  of  person  upon  whom  to  serve  summons  during  his 

absence,  188. 
Disbursements.     (See  Costs;  Fees.) 
Discretion,  abuse  of,  402. 

defined,  402. 
Discontinuance  of  action  in  answer  of  title,  280,  282. 

sureties  in   undertaking  on  replevin  liable,  50. 

on  removal  of  action,  89. 

when  action  can  be,  123,  327. 

sureties  in  bond  in  replevin  liable  on,  50. 

and  abatement  of  action,  answer  of,  257. 
Dismissal  of  action,  nonappearance  of  plaintiff,  83. 

of  action  when  attachment  vacated,  206. 

complaint  in  replevin,  233. 
Disqualification  of  juror,  318. 
Disqualified  sureties,  223,  224.     (See  Sureties.) 
Districts,  boroughs  divided  into,  16. 

in  the  borough  of  The  Bronx,  16-18. 

in  the  borough  of  Manhattan,  18-26. 


570  I.M.KX. 

Districts  in  the  borough  of  Brooklyn,  20-37. 

in  the  borough  of  Queens,  37,  38. 

in  the  borough  of  Richmond,  38. 

in  what,  action  or  proceeding  to  be  brought,  119. 
Docket,  clerks,  what  to  contain,  383,  384. 

when  evidence,  328. 

judgment  docketed,  becomes  one  of  Supreme  Court,  340. 

judgment   docketed   in   another   county.    340. 

judgment  where  defendant  liable  to  arrest,  how  entered  in,  344. 

alteration  of,  10. 

altering,  does  not  affect  validitiy  of  judgment,  345. 

omission  to  keep,  345. 

docketing  judgment  in  another  county,  364. 

entries  in  clerk's,  what  to  contain,  384. 

to  be  delivered  by  clerk  to  successor,  385. 

of  judgment  in  county  clerk's  office,  fees,  454. 

entry  of  judgment  in,  354. 
Domestic  corporation.     (See  Corporation.) 
Domestic  Relations  Law,  47. 

Docks,  penalties  for  violation  of  ordinances  of  commissioner  of,  56. 
Duties,  liability,  and  powers  of  justice,  10. 

Election  of  justice  held  invalid,- 10. 

of  successor  of  justice,  8. 

day,  service  of  summons  on,  is  void,  131. 
Elements  of  fraud,  71.     (See  Fraud.) 
Elevator,  care  of,  by  landlord,  76. 
Employee,  action  by,  369. 

amount  less  than  $50,  369. 

costs  in  action  by  working-woman,  154,  370. 

duty  of  clerk,  where  a  party,  154. 

execution  against  property  and  person,  368. 

judgment  in  favor  of  wage-earner,  154,  341. 

jury  trial  in  action  by,  154,  315. 

judgment  in  favor  of,  368. 

nurse,  as  to  fees,  et  cetera,  370,  453. 

statement  in  judgment,  370. 

who  is  not  an,  447. 
Employer.     (See  Employee.) 
English,  pleadings  to  be  in,  242. 
Enjoining  action,  42. 
Equity  jurisdiction,  no,  85. 
Equity  powers,  no,  86. 

Equitable  action  to  enforce  mechanic's  lien,  69. 
Error  of  judgment,  11. 
Erroneous,  irregular,  or  void  process,  12. 


Index.  571 

Escape,  action  upon  undertaking  for,  50. 

execution  against  person,  58. 

jurisdiction  in  action  for  an,  58. 

liability  of  bail,  insolvent  debtor,  58. 

liability  of  officer,  59. 

return  of  prisoner.  59. 
Estoppel,  by  answering  upon  the  merits,  et  cetera,  42,  83,  90. 

of  sureties  by  giving  undertaking,  50,  51,  90. 

when  judgment  is  an,  328. 
Evidence,  docket-book  is,  32S,  384. 

deposition,  304-311. 

documentary,   as  a   substitute  for  oral,  328. 

objections  to,  grounds  of,  must  be  stated,  328. 

on  commission,   295-304. 

order  of,  on  trial.  328. 

of  party,  may  be  rebutted,  328. 

of  fraud,  72. 

what  is  rebutting,  328. 

foreign   corporation,   book   of,   when,   329. 

foreign  State,  Territory,  or  Country,   when,  329. 

ordinances  of  cities,  villages,  et  cetera,  may  be  read  in,  334. 

printed   copies   of  laws   of  another   State,   and   reports   of  cases,   may   be 
read  in,  335. 

when  certificate   of   public   officer  is,    335. 

seal  presumptive,  of  consideration,  336. 

statute  or  resolution  of  Legislature,   how  proved,  336. 

court  may  grant  or  deny  motion  for  new  trial,  on  newly-discovered,  354. 

appeal   on   such   ground,   403. 

return  of  marshal  shall  be  presumptive,  in  action  against  sureties,  389. 

marshal's  return,  in  action  on  undertaking  in  replevin,  234. 
Excavation,  unguarded,  77. 
Exception  to  sureties,  52,  91,  212.     (See  Sureties.) 

on  appeal,  410. 

sections  applicable  to,  207. 

effect   of  defendant's,   in  replevin,  221. 

refusal  to  adjourn,  not  subject  of  an,  287. 
Execution,  357-373. 

action  by  employee,  369. 

against  justice,  15. 

against  the  person  before  action,  for  an  escape,  58. 

against  executor  or  administrator,  265,  358. 

against  the   person,   nature   of  action,   346. 

as  to  where  property  has  been   attached,  366. 

against  the  person,  what  must  state,  366. 

amount  less  than  $50,  in  action  by  employee,  369. 

attorney  cannot  issue,  clerk  must,  358. 


572  Index. 

Execution)  body  in  action  to  foreclose  lien  on  chattel,  238. 

contents  of,  in  replevin,  233. 

debtor  must  be  correctly  described  in  the,  366. 

delivering  of  property  on  return  of  chattel,  229. 

duty  of  marshal  on,  against  the  person,  367. 

exempt  property  from  levy  and  sale  on,  389. 

how  long  valid,  when  must  be  renewed,  370. 

how  collected,  362. 

how  issued,  357. 

indorsement  on,  362. 

in  action  to  foreclose  lien  upon  a  chattel,  358. 

issued  on  day  of,  but  after  debtor's  death,  valid,  358. 

judgment,  365,  373. 

judgment,  against  property  attached,  207. 

judgment,  against  marshal,  365,  389. 

jurisdiction  to  grant  or  vacate  a  stay  of,  78. 

marshal,  when  liable  to  creditor,  370,  389,  392,  398. 

mechanic's  lien    action,  69,  358,  367. 

money  in  replevin  action,  229. 

money  and  property  in  such  action,  229. 

protection  to  officer,  372. 

must  have  been  issued  and  returned  unsatisfied,  to  maintain  action  against 
sureties,  in  undertaking  in  replevin,  51. 

requisites  of,  389. 

replevin  action,  or  action  to  recover  a  chattel,  367. 

return  of,  before  action  against  sureties  in  undertaking  in  replevin,  234. 

return  and  satisfaction  of,  341,  365. 

renewal  of,  368. 

representative  capacity,  265. 

sale  on,  how  conducted,  390. 

taking  oysters  out  of  Harlem  river,  358. 

where,  against  person  may  issue,  143. 

where  property  has  been  attached,  366. 

what  property  exempt  from,  367. 

when,  may  issue  against  person,  334. 

wage-earner,  154,  368,  369. 
Executor  must  sue  in  his  representative  capacity,  51. 

jurisdiction  of  action  against,  80. 

counterclaim,  265. 

judgment,  265,  340. 
Exemption,  affidavit  of,  as  to  property,  215.     (See  Property.)' 

of  juror,  317,  318. 
Exempt  property,  action  on  bond  for  seizing,  51. 

Fact  in  complaint,  259. 

Facts  must  be  pleaded,  not  fictions,  253,  254. 


Index.  573 

False  representations,  what  must  be  shown,  72. 

imprisonment,  no  jurisdiction  in  action  for,  73. 
Father  liable  to  physician  for  services  to  infant,  46. 

claiming  wages  of  minor  must  notify  employer,  46. 
Fees,  436-464.     (See  Costs;   Disbursements.) 

of  witness  on  deposition  to  be  used  in  another  State,  107. 

of  witness,  107. 

board  of  justices,  cannot  create  and  exact,  108. 

none  allowed  to  person  who  serves  summons  other  than  a  marshal,  139. 

poor  person,  155,  315. 

of  jury,  as  to  poor  person,  155. 

of  jury  of  six,  314. 

of  jury  of  twelve,  315,  318. 

tabulated  statement  of  jury,  315. 

time  of  deposit  of  jury,  315,  319. 

court  no  power  to  order  payment  of  referee's,  355. 

generally,  379,  381,  382. 

property  of  the  city,  381. 

payable  to  clerk,  381. 

tabulated  fees  of  the  clerk,  381,  458. 

tabulated  fees  of  the  marshal,  397,  458. 

clerk  to  receive  no,  for  administering  certain  oaths,  379. 

of  city  clerk,  upon  filing  transcript  of  justice,  not  to  have  any,  13,  15. 

judgment  against  marshal,  394. 

no  officers  of  the  city  government,  except  marshals,  to  receive,  to  their 
own  use,  397. 

tabulated  statement  of  costs  and  fees,  437,  448,  449,  451,  453,  457,  458. 

no  fees  to  be  demanded  from  fire  commissioner  in  action  to  recover  pen- 
alty, 440,  453. 

of    marshal,    for    expenses,    et    cetera,   in   taking   care   of   property   re- 
plevied, 448. 

payable  to  clerk,  452. 

same,  whether  amount  less  or  over  $50,  452. 

trial,  $1  in  all  cases  for  placing  cause  on  calendar,  453. 

clerk  to  have  no,  for  his  own  use,  453. 

poor  person  to  pay  jury,  453. 

employee's  action,  no  fees,  unless  jury  trial  demanded,  453. 

property  of  city,  453. 

on  docket  of  judgment  in  county  clerk's  office,  454. 

jurors'  and  jury,  454,  462. 

witnesses',  454,  463. 

expert,  454,  455. 

parties',  attorneys',  et  cetera,  when  not  allowed,  455. 

stenographers',  455. 

marshals',  397,  456,  458,  463. 

defaulting  witness,  fees  on  warrant  of  attachment  against,  467. 


574  Index. 

Fees,  bargains  for,  are  void,  457. 

keepers',  457. 

summary  proceedings,  458. 

of  clerk,  461. 
Female,  arrest  of,  161. 
Fidelity  or  surety  company  may  execute  undertaking  for  replevin,  which  must 

be  approved  by  the  court,  216. 
Fictitious  name.     (See  also  Name.) 

how  and  when  jurisdiction  acquired,  84. 

attachment,  204. 

unauthorized  summons,  249. 

in  summons,  appearance,  123. 

name  of  another,  123. 

amendment  of,  in  summons,  124. 

ignorance  of  true  name,  125. 

mistake  in  name,  126. 

striking  out,   126. 

unknown  name,  126. 

no  authority  to  grant  attachment  on,  183. 

judgment  against  defendant  by  a,  can  be  amended,  340. 

judgment  against  person  sued  by  a,  361. 

liability  of  marshal  in  execution,  371. 
Fine,  jurisdiction  in  action  to  recover,  56. 

for  driving  fish-poles,  57. 

for  pilot  commissioners,  57. 
Fire  commissioner.     (See  Commissioner.) 
Fish-poles,  fine  for  driving,  57. 
Foreign  corporation.     (See  Corporation.) 
Forms,  appendix  of,  481. 

Foreclosure  of  lien  on  chattel,  236.     (See  Lien  on  Chattel.) 
Fraud,  assignment,  making  of.  court  has  jurisdiction  to  try,  52. 

agent  and  principal  jointly  liable,  71. 

appeal  from  order  denying  motion  for  new  trial  on  the  ground  of,  or  for 
newly-discovered  evidence,  403. 

by  partner,  166. 

checks  drawn  without  funds  to  meet  them,  71. 

checks,  withdrawal  of  deposit,  71. 

complaint  for,  254. 

deceit,  when  action  lies,  71. 

defense  of,  86,  259. 

elements  of,  71. 

evidences  of,  72. 

false  representations  must  be  shown,  72. 

jurisdiction  in  action  for,  71. 

misrepresentations,  72. 

promise,  when  not  a,  72. 


Index.  575 

Fraud,  proof  of,  72. 

proof  of  knowledge,  73. 

property  acquired  and  disposed  of  by,  may  be  recovered  in  replevin,  60. 

relation  of  parties,  73. 

remedies  against,  73. 

sale,  73. 

no  affirmative  relief  on  the  ground  of,  86. 

when  defendant  guilty  of,  liable  to  arrest,  164,  170. 
Frauds,  Statute  of,  48. 

defense  of,  258. 

Goods  manufactured  according  to  specifications,  and  sale  by  sample,  45. 

mingling,  replevin,  60. 
Greater  New  York  Charter,  sections  repealed,  467. 

sections  preserved  in,  480. 
Guardian  claiming  wages  of  infant  must  notify  employer,  effect  of  notifica- 
tion, 46. 

cannot  sue  as  a  poor  person,  155. 

Domestic  Relations  Law,  47. 
Guardian  ad  litem  appointed  by  the  court,  149. 

duty  of  attorney  to  act  as,  151. 

infant  defendant  must  have,  150. 

must  sign  consent  to  become  such,  151. 

poor  person,  155. 

when  to  be  appointed,  150. 

wealth  or  poverty  of,  as  to  responsibility  for  costs,  438. 

Habeas  corpus,  to  testify,  292. 

Health  department,  action  by,  to  recover  penalty,  57,  120. 

answer  of  title,  278. 

Building  Code,  costs,  440. 

costs  in  action  by,  438. 

parties  defendant,  who  are,  153. 
Hearing  on  appeal,  dismissal,  reversal  on  stipulation,  420. 
Holiday,  public  and  half,  115,  141. 

rent  due  on,  48. 

Saturday  afternoon,  115. 

service  of  summons  on,  is  valid,  132. 

what  are  legal,   141. 
Hotel-keeper's  lien,  66. 
Householder,  who  is  a,  224. 
Husband  attorney  for  wife,  46.     (See  Wife.) 

credit  of,  abandonment  of  wife,  46. 

Domestic  Relations  Law,  47. 

liability  of,  for  counsel  fee  for  services  of,  47. 

separate  maintenance  of  wife,  47. 

when  not  a  necessary  party  to  action  or  special  proceeding,  152. 

or  wife,  when  competent  and  incompetent  witnesses,  329. 


576  Index. 

Incapacity  to  sue,  263. 

Indemnity  to  marshal  in  action  against  against  him  by  third  person  on  claim 

of  title  in  replevin,  228. 
Indorsement  of  summons  in  action  to  recover  a  penalty,  58. 

of  summons,  no  jurisdiction  if  no,  85. 

of  summons,  no  judgment  or  execution  if  no,  249. 
Infant,  arrest  of,  when  not  liable  to,  167. 

complaint  must  allege  appointment  of  guardian  for,  254. 

Domestic  Relations  Law,  47. 

necessaries,  45,  46. 

physician,  46. 

right  of,  to  bring  action,  45,  151. 

wages  of,  parent  must  notify  employer  of  claim,  notification,  effect  of,  46. 
Inspection,  of  premises,  when  court  or  judge  may  examine,  329. 
Installments  on  conditional  sales,  action  to  recover,  46. 

action  may  be  brought  upon  bond  for  each,  48. 

action  on  conditional  sale  agreement,  et  cetera,  how  brought,  237. 
Intent,  204. 
Interest  of  justice,  10. 

on  judgment,  when  allowed,  341. 

in  property,  60. 

on  claim  on  removal  of  action,  amount,  89. 
Interpleader,  by  order,  in  certain  cases,  282,  283. 

costs,  in  action,  283. 

commission  to  take  testimony,  283,  297. 

discretionary,  283. 

doctrine  of,  283. 
•  history  on  review,  284. 

judgment  creditors,  284. 

life  insurance,  284. 

liability  of  defendant,  284. 

order  for  practice,  284. 

merchandise,  284. 

warehouseman,  284. 
Interpreter  appointed  and  removed  by  justice  for  cause,  376. 

period  of  appointment  of,  376. 

salary  of,  37.6. 

must  speak  at  least  two  languages,  377. 

not  an  officer  of  the  city  government,  377. 

can  hold  two  offices  simultaneously,  377. 
Interrogatories  to  commission  to  take  testimony,  295,  302,  303. 
Irregular  process,  12. 

Irregularities,  affidavits,  bonds,  and  undertakings,  mistakes  in,  52,  91,  171,  193, 
207,  212,  223,  331,  409. 

on  attachment,  must  be  specified  in  order  to  show  cause,  204. 

in  judgment  in  replevin  may  be  cured,  232. 


Index.  577 

Irregularities,  substituted  service,  134. 

waiver  of,  on  deposition  taken  conditionally,  310. 

waiver  of,  214. 
Issue,  pleading  on  joinder  of,  241. 

who  has  affirmative  of,  right  to  begin,  335,  336. 
Issues,  no  change  of,  on  removal  of  action,  95. 

Janitor.     (See  Attendant.) 

Joined,  parties  who  may  be,  80. 

Joinder  of  action  for  replevin  with  other  causes  of  action,  236. 

of  issue,  pleading  on,  241. 

what  cause  of  action  may  be  united.     (See  Complaint.) 
Joint  debtors,  action  against,  80. 

action  against,  not  served,  154,  340,  361. 

when  not  liable  to  arrest  for  deceit,  167. 

effect  of  judgment  against  partners,  362. 

action  against,  after  recovery  of  judgment,  363. 
Judge.     (See  Justice;  Court.) 

cannot  issue  mandate  for  contempt,  100. 

power  to  punish  disorderly  behavior,  100. 

may  administer  oaths,  et  cetera,  105. 

has  fourteen  days  in  which  to  render  judgment,  311. 

when  defendant  under  arrest  must  decide  immediately,  311. 
Judgment,  adjournment,  no  power  to  render  after,  82. 

affirmed  on  appeal,  when,  will  be,  325,  326,  331,  335,  414,  424. 

appeal  from,  when  may  bo  taken,  339. 

appeal  from,  taken  by  default,  402. 

appeal  on,  how  must  be  rendered,  401,  421. 

appeal  from  order  denying  motion  to  open,  taken  by  default,   356. 

appellate  court  may  correct,  modify,  increase,  and  reverse,  as  to  amount 
of,  401. 

for  arrest,  10. 

for  arrest,  when  defendant  liable  to,  344. 

for  arrest,  cause  of  action  for  arrest  and  contract,  342,  343. 

for  arrest,  order  of,  may  be  ganted  in  action  on  judgment,  where  debt 
fraudulently  contracted,  162. 

attachment,  when  property  has  been  attached,  206. 

attachment  vacated,  no  ground  to  vacate  proper,  204. 

bastardy  and  abandonment  bonds,  277. 

boarding-house  keeper's  lien,  conversion,   10,  44. 

upon  bond  given  on  attached  property,  200. 

confession  of,  jurisdiction  to  render,   78. 

confession  of,  when  invalid,  79. 

consent,  jurisdiction  to  render  by,  78. 

conditions  on  opening  or  vacating,  may  be  imposed  by  court,  354. 

costs  of  motion  to  be  included  in,  439. 

37 


578  Index. 

Judgment,   counterclaim.  2G4,  265,  266,  342. 

counterclaim,  when  equal  or  unequal,  340. 

creditors,   interpleader,   284. 

for  deceit  on  written  complaint,  249. 

decision  of  justice  not  in  time,  83,  84. 

by  default,  340. 

by  default  cannot  be  taken  unless  verified  oomplaint  be  served  with  sum- 
mons, 327. 

defendant's  failure  to  appear,  248,  327. 

delay  in  entering,  11. 

demand  for  prayer  for  relief  not  material,  327. 

of  dismissal  on  merits,  when,  343. 

of  dismissal  of  complaint,  unverified  answer,  342. 

disputing  fact  of  service  of  summons,  before  and  after,  137,   138. 

docketing  in  another  county,  364,  365. 

when  docketed  become  a,  of  Supreme  Court,  340. 

error  of,  11,  12. 

erroneous,  after  filing  undertaking  on  removal  and  reducing  amount  of 
claim,  91. 

against  executor  et  cetera,  340. 

fictitious  name,  125,  361. 

fictitious  name,  may  be  amended,  340. 

interest  on,  allowed,  when,  341. 

interpleader,  creditors,  284. 

joint  debtors,  80. 

effect  of,  against  joint  defendants  when  all  not  served,  340,  361,  363. 

how  docketed  against,  effect  of,  363. 

jurisdiction  to  render,  78. 

jurisdiction  to  render,  on  confession  of,  78. 

jurisdiction  to  render,  on  consent,  78. 

jurisdiction,  in  action  upon,  55. 

jurisdiction,  to  vacate,  amend,  or  modify,  70,  71,  81. 

jurisdiction,  when  sum  exceeds,  344. 

jurisdiction,  loss  of,  to  render,   83,  84. 

jurisdiction,  no,  of  action  upon,  of  court  of  record,  84. 

lien  on  chattel,  238,  249,  340,  341. 

married  woman,  for  and  against,  341. 

marshal,  against,  340,   365,  389,  394. 

marshal,  against,  to  be  indorsed  on  his  bond,  394. 

mechanic's  lien  action,  69,  340. 

motion  to  vacate  or  amend,  71. 

motion  to  set  aside  verdict,  or  vacate,  or  amend,  within  what  time  to  be 
made,    352. 

nonsuit,  when  authorized,   341,  344. 

no  verified  complaint,  249. 

offer  to  allow,  or  compromise,  250,  340. 


Index.  579 

Judgment,   offer  to  allow,  after  removal  of  action,  91,  250. 

on  offer,  250. 

partners,   against,   364. 

pleaded,  how,  254,  200,  274. 

real  property,  bound  by,  when,  and  for  how  long,  340,  360. 

real  property,  bound  by,  when,  in  another  county,  340. 

reversal  of,  when  will  be  reversed  on  appeal,  grounds  for,  324,  325,  327, 
335,  348,  413,  427. 

in  replevin,  233,  341,  343. 

in  replevin,  final,  232. 

in  replevin,  alternative,  232. 

in  replevin,  irregularity  in,  for,  may  be  cured,  232. 

in  replevin,  does  not  affect  right  of  an  action  to  recover  damages,  211,  230. 

representative  capacity,  265. 

satisfaction  of,  on  execution,  373. 

docketed,  how  satisfied,  373. 

satisfaction  presumed,  when,  341,  300. 

sufficiently  rendered,   when,  313. 

Sunday,  cannot  be  entered  on,  337,  341. 

undertaking  to  stay  execution  upon,  on  appeal,  408. 

or  verdict  in  replevin,  what  to  state,  230,  231. 

or  verdict,  et  cetera,  for  part  of  several  chattels,  231. 

on  verdict,  court  may  direct,  when,  340. 

on  verdict,  motion  to  set  aside,  or  vacate,  or  amend,  352. 

or  verdict,  within  what  time  to  be  made,  352. 

void  on  confession,  when,  79. 

void,  when  obtained  by  person  practicing  not  an  attorney,  12,  341. 

void,  if  justice  did  not  decide  in  time,  83,  84. 

void,  if  summons  served  on  defendant's  attorney  and  no  appearance,  84. 

void,  if  no  jurisdiction  of  subject-matter,  84. 

wage-earner,  in  favor  of,  154,  308,  341. 
Jurisdiction,  40-86. 

abandonment  cases,  to  commit  or  require  further  security  in,  277. 

account  stated,  implied  assent,  42. 

acquired,  how,  42. 

action  for  difference  of  amount,  and  court's  jurisdiction,  206. 

of  action  does  not  depend  upon  sufficiency  of  affidavit  for  order  of  arrest, 
75. 

administrator,  action  against,  80. 

amend  or  modify  a  judgment  or  final  order,  in  an  action,  81. 

amendment  of  pleading,  new  cause  of  action  41. 

amount  of,  $500,  42,  48,  49,  56,  58,  59,  62,  68,  71,  73,  80,  236. 

amount  in  excess  of,  344. 

amount  in  excess  of,  waiver,  4S. 

answer  of  title,  court  has,  if  undertaking  not  delivered,  281. 

appeal  may  be  taken  from  jurisdictional  defects,  403. 


580  Index. 

Jurisdiction,  appearance  by  attorney  gives,  41. 

arrested  on  offer  of  undertaking  on  removal  of  action,  90. 
attachment,  to  issue  or  vacate  warrant  of,  78. 
vacating  warrant  of,  does  not  affect,  206. 
bailee,  liability  of,  43. 
bailee,  conversion  by,  44. 
bastardy  and  abandonment  bonds,  54. 

bond   (undertaking),  bastardy  and  abandonment,  action  upon,  54. 
bond  for  appearance,  49. 
bond  on  arrest  and  imprisonment,  49. 
bond,  attachment,  50. 

bond,  cause  of  action,  liability  of  sureties  on,  50. 
bond,  in  action  of  replevin,  sureties,  how  bound,  50. 
bond,  conditioned  for  payment   of  money,  48. 

bond,  discontinuance  of  action  in  replevin,  effect  upon  undertaking,  50. 
bond,  escape,  liability  of  sureties  for,  50. 
bond,  estoppel  from  denying  facts  in,  50 
bond,  executor  must  sue  in  representative  capacity,  51. 
bond,  exempt  property  under  execution,  seizure  of.  -51. 
bond,  exception  to,  and  justification  of,   sureties,  52. 
bond,  execution  must  have  been  issued,  and  returned  unsatisfied,  51. 
bond,  evidence  to  impeach,  51. 

bond,  fraud  in  making  assignment,  court  has  to  try,  52. 
bond,  insurance  agent,  52. 
bond,  joint  and  several  liability,  52. 
bond,  liability  of  sureties,  52. 
bond  of  marshal,  action  upon,  55,  393. 
bond  returned,  52. 
bond,  mechanic's  lien,  52. 

bond,  mistakes,  omissions,  defects   and  irregularities,  and  general  regu- 
lations respecting,  52,  91,  171,  193,  202,  212,  223,  331,  409. 
bond,  order  of  arrest,  52. 
bond,  removal,  53. 
bond,  replevin,  53. 
bond,  surety  or  undertaking,  49. 

bond,  surety  or  undertaking,  action  on,  when  maintainable,  49. 
bond,  surety  or  undertaking,  amendment  of,  49. 
bond,  title  to  real  property  in  question,  53. 
bond,  undertaking  synonymous  with  bond,  53. 
bond,  vessels,  54. 
breach  of  contract,  42. 

breach  of  contract,  damages  for  not  conveying   a  good  title,  48. 
broker,  commissions,  42. 
city  of  New  York,  actions  against,  80. 
chattels,  action  to  recover,  59. 
conditional  sales,  installments,  46. 


Index.  581 

Jurisdiction,  confession,  to  render  judgment  upon,  78. 

confession,  to  vacate,  amend,  or  modify  judgment  upon,  81. 

contract,  breach  of,  42,  43,  45. 

contract,  authority  of  employee,  43. 

contract,  effect  of  refusal  to  perform,  43. 

contract,  performance,  44. 

contract,  excusing  performance,  44. 

contract,  measure  of  damages,  breach  of,  45. 

contract,  terms  of,  48. 

contract,  breach  of,  for  not  conveying  a  good  title,  48. 

consent,  cannot  give,  41. 

consent,  to  render  judgment  upon,  78. 

consent,  to  vacate,  amend,  or  modify  judgment  upon,  81. 

conversion,  43,  44. 

conversion,  by  agent,  44. 

conversion,  by  authority,  44. 

conversion,  by  bailee,  44. 

conversion,  boarding-house  keeper's  lien,  judgment,  44. 

conversion,  by  carrier,  44. 

conversion  of  check,  44. 

conversion,  by  pledgee,  44. 

conversion  of  stolen  horse,  44. 

conversion,  value,  44. 

corporation,  domestic,  or  foreign,  actions  against,  80. 

costs,  where  court  has  no,  438. 

counterclaim  in  excess  of  court's,  266. 

damages,  breach  of  contract,  42,  45. 

damages,  breach  of  contract,  measure  of,  45. 

damages,  breach  of  contract  for  not  conveying  a  good  title,  48. 

decedent's  debts,  45. 

deceit,  action  for  damages  for,  71,  86. 

default,  to  open  a,  81. 

defense  of  fraud,  86. 

definition   of,  41. 

demurrer  to  court's,  266. 

depends  upon  service  of  summons  in  order  of  arrest  case,  180. 

direct  or  set  aside  verdict  in  an  action  or  summary  proceeding,  to,  81. 

disputed,  83. 

enlargement  of,  by  construction,  refused,  83. 

enjoining  action,  42. 

equity  powers,  86. 

equitable  action  to  enforce  mechanic's  lien,  69. 

escape  from  jail  liberties,  action  for  damages  for,  58. 

escape,  execution  against  the  person,  58. 

escape,  liability  of  bail;  debtor  insolvent,  58. 

escape,  liability  of  officer,  59. 


5$2  Index. 

Jurisdiction,  escape,  return  of  prisoner,  59. 
estoppel,  42,  83. 

execution,  to  grant  or  vacate  a  stay  of,  78. 
executor,  action  against  an,  80. 
fictitious  name,  84. 
fine  or  penalty,  action  for,  56. 

fine   or  penalty,   action   for.   indorsement   on   summons,  58. 
fraud,  action  tor  damages  for,  71,  86. 

goods,  manufactured  according  to  specifications  and  sale  by  sample,  45. 
hiring,  installments  on  conditional  sales,  46. 
implication,  83. 

infant,  right  of,  to  bring  action,  45. 
infant,  necessaries,  45. 
infant,  physician,  46. 
infant,  wages  of,  46. 
infant,  notification  to  employer,   46. 
installments  on  conditional  sales,  46. 
of  judgment,  55. 
of  judgment,  how  pleaded,  274. 
lien  upon  chattel,  action  to  foreclose,  62. 
loss  of,  84. 

services,  action  for  damages  for,  73. 
married  women's  necessaries,  46. 
married  women's  necessaries,  abandonment,  46. 
married  women's  necessaries,  credit  of  hvisband,  46. 
married  women's  necessaries,  counsel  fee,  liability  of  husband  for  services 

of  attorney,  46. 
married  women,  domestic  relations    law,  47. 
married  women's  separate  maintenance,  47. 
marshal,  action  upon  bond  of,  55. 
mechanic's  lien,  action  to  foreclose,  68. 
money  deposited,  accounting,  47. 
money  had  and  received,  accounting,  47. 
negligence,  43,  82. 
negligence  of  conductor  of  railroad  company,  must  be  alleged  to  cause 

liability  of  company  for  assault  and  battery,  82. 
new  trial,  to  grant  a,  81. 

new  trial,  on  ground  of  fraud,  or  newly-discovered  evidence,  81. 
no,  in  certain  cases,  81. 
no,  abated,  when  action  has,  81. 
no,  adjournments,  illegal,  82. 
no,  assault  and  battery,  action  for,  73,  82. 
no,  attachment,  without  posting  summons,  et  cetera,  82. 
no,  attorney's  lien,  82. 

no,  conditional  sale,  where  title  not  vested,  85. 
no,  consequential  damages.,  82. 


Index.  583 

Jurisdiction,  no,  criminal  conversation,  73. 
no,  decedent's  debts,  83. 

no,  dismissal  of  action  on  plaintiff's  failure  to  appear  after,  83. 
no,  decision  of  justice  not  in  time,  83. 
no,  equity,  85,  86. 

no,  false  imprisonment,  action  for,  73. 
no,  fictitious  name,  without  further  statement,  84. 
no,  judgment  court  of  record  action  upon,  84. 
no,  libel,  73. 

no,  loss  of  society  of  husband  or  wife,  Id. 
no,  malicious  prosecution,  action  for,  73. 
no,  order  of  reference,  no  power  to  make,  84. 

no,  promise  to  marry,  action  to  recover  damages  for  breach  of,  42. 
no,  referee,  no  power  to  appoint,  84. 
no,  seduction,  73. 

no,  service  of  summons  not  a  fact,  84. 

no,  service    of   summons    on    defendant's    attorney    not   followed    by   ap- 
pearance, 84. 
no,  slander,  73. 

no,  subject-matter,  judgment   void,   84. 
no,  substituted  service,  not  defendant's  residence,  84. 
no,  summons,  amendment  of,  by  adding  amount  in  another  summons,  85. 
no,  summons  not  indorsed,  85. 
no,  tender  of  undertaking  on  removal,  85. 
no,  title  to  real  property  in  question,  85,  278. 
no,  written  instrument,  actions  to  reform,  86. 
objection  to,  when  to  be  taken,  84. 
objection  to,  when  may  be  taken,  84. 
order  of  arrest,  to  issue  or  vacate,  78. 
other  civil  actions,  or  proceedings,  et  cetera,  79. 
partnership,  47. 
penalty  or  fine,  action  for,  56. 
penalty  or  fine,  indorsement  on  summons,  58. 
personal  injury,  action  for  damages  for,  73. 
power  of  court    limited,  42. 
proceedings,  to  grant  or  vacate  a  stay  of,  78. 
promissory  notes,  action  upon  lost  negotiable  paper,  47. 
promissory  notes,  accommodation  note;  usury,  48. 
property,  injury  to,  action  for  damages  for,  73. 
property,  out  of  the  county,  replevin  for,  62. 
replevin,  jurisdiction  in  action  of,  59. 

provisional  remedy,  does  not  depend  upon  whether  it  is  vacated,  206. 
rent,  due  on  holiday,  48. 
replevin,  action  to  recover  chattels,  59. 
restaurant-keeper,  43. 
sheriff,  action  against,  to  recover  property  seized,  62. 


5S4  Index. 

Jurisdiction,  submission  of  controversy,  42. 

summary  proceeding,  70,  78,  81. 

Statute  of  Frauds,  48. 

terms  of  contract,  48. 

title,  damages  for  not  conveying,  48. 

undertaking,  action  on.     'See  Jurisdiction;  Bond.) 

verdict,  to  direct  or  set  aside,  in  an  action,  or  summary  proceeding,  81. 

waiver  of  amount  in  excess  of,  48,  85. 

waiver  of  amount  in  answering  on  the  merits,  or  giving  undertaking  on 
removal,  90. 
Juror.     (See  Jury,  and  Jury  Trial.) 
Jury,  and  Jury  Trial,  50. 

adjournment  after  return  of,  321. 

assent  to  a  jury  of  twelve,  319. 

bastardy  and  abandonment  bonds,  in  action  upon,  55,  314. 

bond  of  marshal  in  action  upon,  55. 

challenge,  grounds  of,  329. 

peremptory  challenges,  number  of,  329. 

trial  of,  on  challenge,  330. 

chattel,  action  to  recover,  jury  of  twelve,  322. 

chattel,  verdict  of,  in  action  to  recover,  322. 

court  may  direct  trial  by  jury,  when,  310. 

court  has  power  to  set  aside  verdict  of  jury  and  to  order  new  trial,  et 
cetera,  321. 

demand  for  jury  trial  must  be  made  upon  joining  issue,  314. 

fees  of,  315. 

dissent  of,  from  verdict,  322. 

drawing  the  jury,  314. 

employee  or  wage- earner  is  plaintiff,  when,  154. 

examination  and  swearing  of  the  jury,  330. 

fees  of,  454,  462. 

Avhen  trial  of  six,  314,  319. 

when  trial  of  twelve.  315,  318. 

tabulated  fees  of,  462. 

justice  may  direct  and  order,  10.  316,  330. 
|  joint  contract,  how,  may  find,  322. 

jurors,  ballot  of,  summoned  but  not  drawn,  320. 

jurors,  bribery  of  officer  by  juror  drawn,  punishment  for,  318. 

jurors,  bribery,  concealing  offer  of,  punishment  for,  318. 

jurors,  default,  in  attendance  is  contempt,  102. 

jurors,  dissent  of,  from  verdict.  322 

jurors,  excuse  when  serving  in  this  court,  318. 

jurors,  exempt  from  jury  duty  in  every  other  court,  when,  317. 

jurors,  list  of  trial,  to  be  furnished  by  clerk.  317. 

jurors,  misconduct  of,    102. 

jurors,  physician  giving  false  certificate  to,  penalty  for,  318. 


Index.  585 

Jury,  jurors,  qualification,  et  cetera,  of,  318. 

jurors,  refusal  to  attend,  or  be  sworn,  et  cetera,  is  contempt,  104. 

jurors,  how  summoned,  319. 

jurors,  talesmen,  320. 

marshal  in  charge  of,  330,  389. 

oath  to,  330,  334. 

objection  to,  when  to  be  made,  331. 

papers,  jury  taking  out,  331. 

polling  the,  322. 

replevin,  verdict  of,  in  action  to  recover  a  chattel,  322. 

requests  to  go  to  the,  335. 

second  trial,  317. 

in  summary  proceeding,  70. 

swearing  of,  329,  330. 

verdict  of,  in  action  of  replevin  or  to  recover  a  chattel,  322. 

wage-earner  is  plaintiff,  when,  154. 

withdrawing,  331. 
Justices,  7. 

additional,  9. 

access  to  courthouse,  to  have,  117. 

action   cannot   be    continued   before   another   justice,    while    special   pro- 
ceeding may  be,  113,  326. 

appeal,  return  on,  no  right  to  voluntarily  alter,  or  add  to,  412. 

appeal,  return  on,  liability  for  false,  12,  415. 

attendants,  stenographer  and  interpreter  may  be  removed  by,  376. 

attorney,  may  act  as,  in  his  own  case,  13. 

board  of  justices,  duties  of,  et  cetera,  107. 

board  of  justices,  majority  must  concur  to  adopt  resolution,   112. 

case  on  appeal,  to  settle,  416. 

case  on  appeal,  to  settle,  when  out  of  office,  417. 

clerk,   assistant  clerk   and  other  officers,  stenographer,   interpreter,  and 
attendants,  376. 

city  officer,  not  a,  9. 

contempt,  cannot  issue  mandate  for,  100. 

continuance  in  office,  10. 

conversion,  in  action  for,  must  insert  in  judgment  the  words  "defendant 
liable  to   execution  against  his  person,"  345. 

court  open,  keeping,  and  trial  on  Sunday,  10. 

death  or  removal  of,  not  to  impair  proceedings,  13,  113. 

death  or  removal  of,  remedy  on  appeal,  417. 

decision,  has  fourteen  days  for,  311. 

decision,  when  defendant  under  arrest,  must  decide  immediately,  311. 

decision,  if  not  in  time,  83,  84. 

decision,  after  time  limited  for,  312. 

decision,  consent  to  decide  after  time  limited,  312. 

decision,  failure  to  decide,  312. 


586  Index. 

Justices,  delaying  entry  of  judgment,  11. 
disqualification   of,    13. 
disorderly  behavior,  power  to  punish,  100. 
district,   when,   may   hold  court  in  another,   than  in  one   which  he  was 

elected,  112. 
docket,  altering,  10. 

duties,  liability,  and  powers,  10,  11,  12. 

duties  of,  in  approving  undertaking  on  removal  of  action,  90. 
election  of,  9. 

election  of,  held  invalid,   10. 
exceeding  his  power,  12. 
error  of  judgment,  11,  12. 

execution  or  supplementary  proceedings  against,  15. 
false  return,  liability  of,  for,  12,  415. 
fees,  to  have  no,  13,  15. 
fees,  cannot  create,  or  exact,  108. 
interest,  relationship  of  counsel,  10. 
interpreter,  may  remove,  376. 
jury  trial,  may  direct,  10,  330. 
liability  of,  10,  11,  12. 
mandamus  to,  312. 
mandamus,  to  remove  action,  91. 
marriages,  may  solemnize,   10. 
misdemeanor,   12. 

misdemeanor,  allowing  person  not  an  attorney  to  practice,  12. 
names  of,  with  their  residences,  xxv. 
oath  of,  14. 

oath,  may  administer,  et  cetera,  105. 
qualification,  et  cetera,  of,  13. 
relationship,  11. 

requisition  of,  in  replevin,  218. 
requisition  of,  in  replevin,  how  executed,  218. 
return  on  appeal,  false  liability  for,  12,  415. 
return  on  appeal,  no  right  to  voluntarily  add  or  alter,  412. 
rules,  to  make,   108. 

rules  of  practice,  adopted  by  board  of,  109. 
salary  of,  14. 

stenographer,  may  be  removed  by,  376. 
stenographer,  no  copy   minutes   for,  taxable,  455. 
successors  of.  election  of,  8. 
term  of,  8,  15,  16. 

term  of  office,  finishing  trial  and  return  to  writs  after,  11,  329. 
transcript  of  proceedings,  11. 
trial,  may  inspect  premises  on,  329. 
trial,  cannot  finish  after  term  of  office,  329. 
undertaking  on  appeal  must  be  approved  by,  408,  410. 


Index.  587 

Justices,  undertaking  on  removal,  remedy  if,  refuses  to  accept,  90. 

vacancies  in  terms  of  office  of,  16. 

volunteering  amendments,  11,  273. 

witness,  proceedings  in  case  of,  14,  172. 
Justification  of  sureties,  52,  91,  212,  224. 

adjournment  of,  224. 

adjournment  to  allow,  on  undertaking  on  removal,  93. 

of  defendant  in  replevin  on  return  of  the  summons,  222. 

failure  to,  224. 

further  time,  224. 

sections  applicable  to,  207. 

Knowledge,  verification,  271. 

Landlord  and  tenant,  breach  of  agreement  to  make  repairs,  75,  70. 

ceiling  falling  in  tenant's  apartments,  notice  of  defect,  73,  76. 

complaint  for  rent,  254. 

damage  by  water,  leaking  pipes,  76. 

dumbwaiter  in  dangerous  condition,  76. 

elevator,  care  of,  76. 

use  and  occupation,  complaint  for,  256. 
Law  books,  et  cetera,  when  exempt  from  lien,  66. 
Laws  repealed,  467.     (See  Repeal.) 

schedule   of,   repealed,  467. 
Legal,  capacity,  no,  is  ground  for  demurrer,  267. 

custody,  property  in,  211. 
Liability  of  justice,  10,  11.     (See  Justice.) 
Libel,  no  jurisdiction  in  action  for,  73. 
Lien,  action  to  foreclose  on  a  judgment,  340. 

animals,  wagons,  or  harness,  of  bailee,  63. 

apparel  of  wife  cannot  be  detained,  64. 

artisan's,  on  personal  property,  63. 

attorney's,  this  court  no  power  to  enforce,  82,  86. 

bailment,  lien  on,  63. 

boarding-house  keeper,  who  is,  64,  66. 

boarding-house  keeper,  extent  of  his,  upon,  64. 

boarding-house  keeper,  conversion,  arrest  for,  165. 

book  accountant's,  64. 

books,  blanks,  et  cetera,  of  lawyer,  exempt,  66. 

chattel,  upon,  action  to  foreclose,  62,  136. 

chattel,  upon  action  to  foreclose,  in  what  court  maintainable,  236. 

chattel,  warrant  in  action  for,  237. 

chattel,  action  on  conditional  sale  agreement,  how  brought,  237. 

conditional  sales  of,  exemption  from,  65. 

conditional  sales,  vendor  and  vendee,  238. 


588  Index. 

Licn,conditional  sales,  conditions  and  reservations  in  contracts  for  sale  of  goods 
and  chattels,  238. 

conversion,  boarding-house  keepers'  lien,  judgment,  239. 

judgment,  order  of  arrest,  body  execution,  238. 

judgment,  ct  cetera,  239. 

application  of  this  article,  not  to  affect  other  rights  or  remedy,  239. 

enforcement  of  liens,  on  personal  property,  239. 

carriages  and  vehicles,  04. 

choses  in  action,  64. 

common  law,  what  they  embrace,  64. 

discharge  of,  65,  66. 

duration  of,  on  monuments,  ct  cetera,  67. 
i  extent  of,  tender,  66. 

hotel,  inn,  and  lodging-house  keeper's,  66. 

law,  65. 

law  books,  law  blanks,  and  law  office  supplies,  66. 

legal  custody,  211. 

livery-stable  keepers',  agreement,  66. 

mechanics'  liens.     (See  Mechanics'  Liens.) 

monuments,  tombstones,  et  cetera,  67. 

notice  of,  67. 

newspaper,  67. 

piano  or  organ,  67. 

safe  sold  conditionally,  68. 

sales  of  property  to  satisfy,  68. 

stallions,  service  of,  68. 

statutory,  68. 

storage,  enforcement  upon,  68. 

storage,  private,  67. 

tender  of,  66. 

undertaking  on  removal  in  action  to  recover,  87. 

warehouse,  68. 

warehouseman,  68. 

when  it  exists  and  does  not  exist,  65. 
when  it  is  and  is  not  defeated,  64. 
wife's  Avearing  apparel  cannot  be  detained,  64. 
workingmen's,  68. 
Life  insurance,  interpleader,  284. 
Limitation,  Statute  of,  as  to   wage-earner,  368,  369. 
Livery-stable  keepers,  lien,  66,  67. 
Lodging-house  keepers,  lien,  66. 
Loss  of  services,  jurisdiction  in  action  to  recover  damages  for,  73. 

of  society  of  husband  or  wife,  no  jurisdiction  in  action  for,  73. 
Lost  negotiable  paper,  action  upon,  47. 
Lunatic,  service  of  summons  on,  not  valid,  132. 


Index.  589 

Mandamus,  for  failure  of  court,  judge,  or  justice  to  decide,  312. 

to  remove  action,  91. 
Manhattan,  borough  of,  names  of  the  justices,  clerks,  court  officials,  and  mar- 
shals, with  their  residences,  day,  places  of  holding  court,  and  telephone 
number,  xxvi. 

districts  in  the  borough  of,  18-26. 

removal  of  action  to  City  Court,  87. 
Malicious  prosecution,  no  jurisdiction  in  action  for,  73. 
Mandate,  defined,  100,  397,  398. 
Marriage,  justice  may  solemnize,  10. 
Married  woman,  abandonment  by  her  of  husband,  no  support,  4G. 

abandonment  of,  by  husband,  credit,  46. 

agency  of,  46. 

appears  in  action  as  if  single,  152. 

credit  of  husband,  46. 

Domestic  Relations  Law,  47. 

husband  liable  for  services  of  attorney,  46. 

judgment  against,  341. 

necessaries  furnished  wife,  complaint  for,  255. 

separate  maintenance  by  husband,  47. 

wife's  property,  62. 

wife's  wearing  apparel,  64. 
Marshal.     (See  also  Sheriff.) 

action  may  be  maintained  by,  for  attached  property,  197. 

action,  must  deliver  attached  property  in  such  case  to  defendant,  when 
bond  given,  198. 

action  by,  on  undertaking  given  by  third  person  on  claim  of  title,  398. 

action  against,  by  third  person  claiming  title  in  replevin,  227. 

agreement  with  debtor  on  execution,  457. 

amount  collected  on  bond  of,  to  be  credited,  394. 

appear  for  either  party,  cannot,  149,  390. 

appointment,  certificate  of,  388. 

appointment  for  the  boroughs  of  Queens  and  Richmond,  388. 

appointment  of,  deemed  waived  for  failure  to  file  bond,  395. 

arrest  by,  duty  of,  in  making,  175,  388. 

arrest  of  defendant,  to  notify  plaintiff  of,  172. 

arrest  of  defendant,  undertaking  given  by,  to  be  delivered  to,   172. 

arrest  of  defendant,  may  examine  bail  given  by  defendant,  173. 

arrest,  order  of,  must  be  directed  to,  and  served  by,  388,  389. 

attached  property,  certificate  of,  to  be  furnished  by,  196. 

bond  of,  389,  390. 

bond  of,  to  mayor,  removal  of,  395. 

bond  of,  prosecution  of,  389,  391,  393. 

bond  of,  cancelled,  city  clerk  to  report  to  mayor,  389. 

book  of  entry  to  be  kept  by,  of  process,  et  cetera,  issued  to  him,  398. 

chattel,  when  and  whom  to  deliver  to,  225. 


590  Index. 

Marshal,  civil  officer  not  to  hold  any  other  office,  389. 
compensation  of,  389. 
contempt,  when  guilty  of,  102,  389. 
contempt,  error  or  mistake  of,  371. 
continued,  in  the  city  of  New  York  and  Brooklyn,  386. 
costs,  on  motion  for  leave  to  prosecute  bond  of,  439. 
definition  of,  389. 

deposit,  given  in  lieu  of  undertaking,  must  pay  into  court,  173. 
execute  warrant  of  attachment,  193,  397. 
entry  of  judgment  on  bond  of,  394. 
exception  to  sureties  may  be  served  on,  398. 
execution  must  be  issued  to,  357. 
execution  not  to  issue,  in  action  to  foreclose  lien  on  chattel,  unless  return 

that  property  not  available  for  levy,  et  cetera,  358. 
execution  must  be  directed  to,  365. 
execution,  when  issued  to,  duty  of,  365. 
execution  against  the  person,  duty  of,  367,  388. 
execution  against  wage-earner,  duty  of,  370. 
execution  creditor,  liability  to,  by,  370,  389,  392,  398. 
execution  issued  to,  no  power  to  delegate  or  substitute,  371. 
execution,  fictitious  name,  when  liable  on,  371. 
execution  to,  requisite  of,  notice  of  sale  and  other  provisions  concerning, 

389. 
execution  for  unpaid  taxes,  duty  of,  389. 
execution,  exempt  property,  389. 

execution,  sale  on,  when  and  how  conducted  by,  390. 
execution  by,  when  resisted,  sheriff  to  act,  398. 
execution,  seizure  and  return  by,  on,  for  fine,  et  cetera,  oysters  around  the 

waters  of  Harlem  river,  398. 
execution  in  replevin,  398. 
expenses  of,  in  replevin,  389,  397. 
fees  of,  and  tabulated  fees,  389,  397,  456,  457,  463. 
fees,  no  officer  of  city  government  except,  to  receive  any,  to  their  own  use, 

397. 
fees  for  trouble,  et  cetera,  in  taking  care  of  replevied  property,  219,  248. 
fees,  none  allowed  to  person  serving  summons  other  than,  139. 
goods  taken  from  a  building  by  third  party,  398. 
indemnity  to,  in  action  in  replevin,  228. 
indemnity  for  levy  by,  372. 
juror,  punishment  of,  for  bribing,  318. 
jury  list,  to  receive  from  clerk  when  drawn,  314. 
jury,  to  summon,  from  list,  319. 
jury,  to  summon  talesmen,  320. 
jury,  must  be  put  in  charge  of,  330,  389. 
judgment  against,  340,  365,  389,  394. 
judgment  creditor,  trespass  by,  367. 


Index.  591 

Marshal,  judgment  against  transcript  and  execution,  393. 
judgment  against,  duty  of,  389. 
levy  by,  pointing  out  goods,  397. 
mandate,  execution  of,  by,  398. 
mayor  to  appoint,  and  terms  of,  387. 
mayor  to  appoint  in  writing,  387. 
money  paid  to,  recovering  back,  373. 
money,  nonattachment,  insufficient,  201. 
names  of  and  residences  of,  xxv. 

notice  by,  requiring  indemnity  on  claim  of  title  by  third  person,  226. 
oath  to,  330,  389. 

penalty  for  wrong  delivery  of  property  by,  226,  398. 
penalty,  what  should  be  alleged  in  action  for  wrong  delivery  by,  226. 
powers  of,  389. 

process  may  be  served  in  city  limits,  396. 

process  must  be  served  and  executed  by,  160,  389,  395,  396,  397. 
process,   when  insufficient,  372. 

property,  must  deliver,  to  claimant  when  bond  given,   199. 
property  of  stranger  taken  by,  377,  392. 
property  exempt  from  levy  and  sale  on  execution,  389. 
property  taken  and  no  return,  372. 
property  taken  by,  when  protected,  372. 
property,  purchase  of,  by,  prohibited,  367. 
property  replevied,  care  of,  220. 
removal  and  suspension  of,   389,  395,   398. 
rent,  liability  for,  398. 

replevin,  return  to,  requisition  in,  by,  220. 
replevin,  how  requisition  to  be  executed  by,  218,  219. 
replevin,  power  of,  in  executing  requisition,  219,  233. 
replevin  to  keep  in  possession  of  property,  when  and  how  to  deliver  same, 

219. 
replevin,  care  of  property,  220. 
replevin,  when  summons  to  be  issued  in,  228. 
replevin,  requisition  to,  398. 
replevin,  return  to,  398. 
replevin  or  action  to  recover  chattel,  343. 

replevin,  action  against,  by  third  person  claiming  title  in,  227. 
return  by,  presumptive  evidence,  52. 

return  by,  presumptive  evidence  in  action  against  sureties,  389. 
return  of  alias  summons,  249,  371. 
return  attaching,  201. 
return,  failure  to  make,   392. 

sheriff,  certain  laws  in  relation  to,  made  applicable  to,  397. 
successor  to,  in  New  York  city,  388. 
summary  proceedings,  service  of  precept  by,  in,  390. 


5!)  2  Index. 

Marshal,  summons,  sen-ice  of,  and  warrant  by,  198,  390,  395,  396. 

summons,  cannot  serve,  in  his  own  case,  132,  139,  388. 

summons,  return  of  alias,  249,  371. 

sureties    in   undertaking,   may   require   them  to   justify   when   defendant 
a  nested,  388. 

sureties  on  bond  of,  not  liable  until  after  valid  judgment  recovered  against 
him,  392. 

sureties  on  bond  of,  not  liable  for  indemnity  money  paid  to,  392. 

title  by  third  person,  claim  of,  action  by,  on  undertaking  given  by  third 
person  claiming,  398. 

title  by  third  person,  claim  of,  action  by  third  person  claiming,  in  re- 
plevin, against,  227. 

title  by  third  person,  claim  of,  proceedings  by,  on,  227,  398. 

transcript  of  judgment  against,  390. 

transcript  of  judgment  against,  may  be  filed  with  city  clerk,  394. 

undertaking  given  by  third  person  on  claim  of  title,  action  by,  on,  398. 

warrant  of  attachment  granted,  duty  of,  and  how  executed  by,  389. 

warrant  of  attachment,  defaulting  witness,  292. 

warrant  of  attachment,  defaulting  witness,  fees  thereupon,  293. 

warrant  to,  in  action  to  foreclose  lien  on  chattel,  237. 
Master  and  servant,  complaint  for  wages,  254. 
Mayor  to  appoint  marshal,  387. 

to  appoint  justice  to  fill  vacancy,  16. 

appointing  power,  387. 

must  be  in  writing,  387. 

removal  of  marshal  by,  389,  396. 

suspension  of  marshal  by,  396. 

city  clerk  to  report  canceled  bond  to,  395. 
Mechanic's  lien,  action,  requisites  of  complaint,  255.  -" 

jurisdiction  of  action  to  enforce,  68. 

proceedings  for  enforcement  of,  69. 

complaint  in  action  to  enforce,  69. 

costs  and  disbursements,  69,  439. 

equitable  action,  69. 

execution,  form  of,  358,  367. 

judgment,  execution,  sale,  69,  340. 

summons  in  action,  may  be  served  anywhere  in  the  State,  105. 

trial  of  action,  69. 

service  of  summons,  when  made,  132. 

proceeding  on  return  of  summons,  249. 

order  of  arrest,  when  may  be  granted,  162. 

offer  to  pay  into  court  on,  251. 

return  day  of  summons  and  proceedings,  141. 

transcript  of  judgment,  359. 

when  personal  service  of  summons  cannot  be  made,  134. 


Index.  593 

Medical  expenses,  complaint  for,  255. 
Merchandise,  interpleader,  284. 
Merits  of  action  on  attachment,  204. 

when  judgment  dismissed  on,  343,  344. 
Mileage  fees  of  witness,  292. 

Milk  and  cream  cans,  plaintiff  may  elect  district  in  which  to  commence  ac- 
tion, 121. 

who  may  sue  for  recovery  of,  153. 
Minor.     (See  Infant.) 
Misdemeanor,  justice  liable  for,  12. 
Misjoinder,  defense  of,  201. 

ground  of  demurrer,  267. 
Misrepresentations,  fraud,  72. 
Misnomer  in  pleading,  200. 

in  contempt  proceeding,  102. 

when  waived,  277. 
Mistakes,  omissions,  defects,     nd  irregularities,  and  general  rules  respecting 
affidavits,  bonds  and  undertakings,  52,  91,  171,  193,  207,  212,  223,  331, 
409. 

in  name  of  witness  in  commission,  301. 

in  warrant  of  attachment,  205. 

in  name  of  defendant,  waiver,  273. 
Mitigation  of  damages,  pleading,  260. 
Money,  deposited,  accounting,  jurisdiction  in  action  for,  47. 

had  and  received,  47. 

failure  to  pay  into  court  is  contempt,  102. 

replevin  for,  61. 

loaned,  complaint  for,  255. 

had  and  received,  complaint  for,  255. 
Monuments,  tombstones,  lien  on,  67. 
Motion,  to  discharge  or  vacate  from  arrest,  176,  179. 

when  can  be  made,  180. 

to  vacate  attachment,  when  it  can  be  made,  205. 

to  strike  out  evidence,  333. 

notice  of,  to  set  aside  verdict,  may  be  waived,  333. 

to  vacate  or  amend  judgment,  and  to  set  aside  verdict,  71,  81,  352. 

within  what  time,  352. 

to  dismiss  appeal,  415,  420. 

for  restitution  of  property  upon  reversal  on  appeal,  419. 
Municipal  Court  of  the  City  of  New  York,  5. 

ereated,  6. 

not  a  new  court,  7. 

constitutionality  of,  7. 

sessions  of,  to  be  held  in  each  district,  16.  - 

38 


594  Index. 

Name.     (See  also  Fictitious.) 

fictitious,  in  summons,  123. 

change  of.  in  summons,  125. 

want  of,  in  summons,  125. 

inserting  real,  in  summons,  125. 

mistake  in,  126. 

unknown,  126. 

single  letter,  126. 

striking  out,  126. 

of  justices,  clerks,  court  officials,  and  marshals,  with  their  residences,  xxv. 

of  the  city  of   New   York,   5. 

of  defendant,  waiver  of  mistake  in,  273. 
Necessaries  of  infant,  45,  46,  255. 

furnished  wife,  complaint  for,  255. 

married  women's,  46. 
Negligence,  abuse  of  horse,  74,  75. 

careless  driving,  74. 

collision  between  car  and  vehicle,  74. 

contributory,  74. 

crossing  street,  74. 

dumbwaiter,   dangerous  condition  of,  76. 

elevator,  care  of,  76. 

excavation  unguarded,  77. 

exploding  siphon,  79. 

falling  bricks,  75 

horse  and  wagon,  75. 

imputed,  75. 

injury  to  property  and  injury  to  person,  one  not  a  bar  to  recovery  on  the 
other,   75. 

landlord  and  tenant,  agreement,  75. 

landlord  and  tenant,  ceiling  falling,  75. 

landlord  and  tenant,  water,  leaking  pipes,  76. 

landlord  and  tenant,  roof  leaking,  77. 

liability  of,  bailee  for,  43. 

medical  expenses  may  be  recovered,  76. 

of  physician,  77. 

protection  of  person  on  premises  of  another,  77,  78. 

bailment,  assault  and  battery,  76,  82. 

roof  leaking,  77. 

servants,  77. 

stopping  runaway  horse,  77. 

visitor  to  an  apartment-house,  78. 
Negotiable  paper.     (See  also  Note.) 

action  upon  lost,  47. 

proof  of  lost,  333. 


Index.  595 

New  action,  in  answer  of  title,  280. 

action,  cause  of,  defense,  amendment,  273. 

matter,  defense  of,  260,  261. 
New  trial,  for  fraud  or  newly -discovered  evidence,  354.     (See  Verdict;  Trial.) 

costs  on,  451. 
New  York.     (See  City  of  New  York.) 
Nonjoinder,  defendant  must  plead  or  cannot  raise  objection  of,  on  trial,  333. 

defense  of,  261. 

of  parties,  demurrer,  267. 
Nonresident,  when  clerk  is  not  a,  121. 

corporation,  when  not  a,  121. 

who  are,  121,  122. 

as  to  place  of  business,  122. 

cannot  sue  as  poor  person,  155. 

attachment  against,  205. 

attachment  may  issue  against,  of  the  city  of  New  York,  19^ 

affidavit  as  to,  to  procure  attachment,  189. 

witness,  privilege  of,  290. 
Nonsuit.    (See  also  Complaint.) 

authorized,  when,  341. 

cause  of  action  for  arrest  and  contract,  342,  343. 

counterclaim,  342. 

dismissal  of  complaint,  unverified  answer,  342. 

failure  to  appear  on  adjourned  day,  342. 

failure  of  proof,  what  deemed,  342. 

voluntary,  when,  341. 
Nota^r  Public,  when  certificate  of,  is  evidence,  333. 

in  case  of  death,  et  cetera,  how  proven,  333. 
Notes,   promissory,   lost   negotiable   paper,   action    upon,   47,   333.     (See   also 
Negotiable  Paper.) 

accommodation,  usury,  48. 

replevin  for,  61. 
Notice  by  defendant,  requiring  return  of  chattels  in  replevin,  222. 

by  plaintiff's  agent  in  replevin,  requiring  return  of  chattel,  217. 

by  marshal,  requiring  indemnity  on  claim  of  title  by  third  person,  226. 

of  appearance  by  attorney  in  writing,  to  be  filed  to  obtain  costs,  440. 

of  application  for  commission,  296,  297. 

of  application  for  deposition,  306. 
Notice  of  lien,  67. 

of  application  to  vacate,  et  cetera,  attachment,  202. 

of  motion,  should  specify  irregularities,  204,  214. 

to  produce,  290,  294. 

Oath  of  justice,  14. 

justice  may  administer,  et  cetera,  105. 

as  to  administration  of  an,  and  general  mode  of  swearing,  334. 

to  marshal,  389. 

to  juror,  330,  334. 


596  Index. 

Objection  to  jurisdiction,  when,  and  when  may  be  taken,  84. 

to  sufficiency  of  bond  on  attachment,  when  to  be  made,  201. 

to  irregularity,  when  to  be  taken,  -J  14. 

by  demurrer,  to  complaint,  208,  200. 

to  evidence  and  testimony  in  commission,  302,  303,  309,  310. 

must  be  taken  on  the  trial,    1-12. 
Offer  to  allow  judgment  or  compromise,  250. 

to  allow  judgment  after  removal  of  action,  01,  250. 

to  allow  judgment  after  removal  on  appeal,  404. 

to  restore  property,  61. 

of  undertaking  on  removal,  jurisdiction  arrested,  90. 

acceptance  of,  250,  251. 

oral  acceptance  of,  251. 

when  oiler  may  be  made,  250. 

judgment  on,  250. 

judgment  cannot  be  given  in  evidence  if  not  accepted,  250. 

judgment,  deposit  of  amount  of,  with  clerk,  250. 

to  pay  into  court  in  mechanic's  lien  cases,  251. 
Office,  continuance  of  justice  in,  10. 

extending  term  of,  of  justice,  15. 

terms  of  election  of  justices,  15. 

vacancies  in,  of  justice,  10. 
Officer,  liability  of,  59. 

liability  of,  for  an  escape,  59. 

liability  of,  for  an  escape,  return  of  prisoner,  59. 

of  sheriff,  disqualified  from  being  bail  or  surety,  224. 
Omission  respecting  affidavits,  bonds,  and  undertakings,  52,  91,  171,  193,  207, 
212,  223,  331,  409. 

undertakings,  52-91,  171,  193,  207,  212,  223,  331,  409. 

to  serve  notice  of  appeal,  how  supplied,  et  cetera,  400,  408. 

of  evidence  in  return  on  appeal,  remedy,  414. 

to  plead,  is  not  an  omission,  249. 
Oral  examination  of  witness  on  taking  deposition,  310. 

questions  taking  testimony  by  commission,  296. 
Order,  for  contempt,  requisites  of,  et  cetera,  102,  103. 

service  of,  failure  to  obey,  103. 

for  substituted  service,  133,  134. 

how  service  of,  in  such  case  made,  135. 

on  petition  by  poor  person  to  be  filed,  157. 

when  may  be  annulled,  in  such  case,  157. 

defendants,  in  such  case,   158. 

leave  may  be  annulled  as  in  case  of  plaintiff,  158. 

of  arrest,  in  what  cases  granted,  161. 

of  arrest,  where  may  be  made,  162. 

of  arrest,  statements  in,  181. 
returnable  on  Sunday  is  a  nullity,  352. 


Index.  597 

Order,  to  prosecute  marshal's  bond,  costs  on,  457. 

when  appeal  from,  may  be  taken,  399. 

when  appeal  from  final,  may  be  taken  in  summary  proceedings,  399. 

of  substitution,  in  case  of  death  of  party  pending  appeal,  419. 

reference,  no  jurisdiction  to  make,  84. 

to  show  cause  must  specify  irregularities,  204,  214. 

on  noncompliance  or  not  furnishing  bill  of  particulars,  244. 

interpleader,  282,  283,  284. 

suppressing  deposition,  302,  303. 
Order  of  arrest.     (See  Arrest.) 

summons  in,  must  be  made  returnable  immediately,  141. 

must  be  directed  to  and  served  by  marshal,  389. 
Ordinance,  corporation,  where  action  to  be  brought,  120. 

of  cities,  villages,  et  cetera,  may  be  read  in  evidence,  334. 
Original  papers,  motion  to  vacate  attachment  upon,  205. 
Ownership,  what  is  sufficient  allegation  of,  214. 
Oysters  out  of  Harlem  river,  penalty  for  taking,  57. 

Parent  claiming   wages   of   infant   must  notify   employer,   effect   of   notifica* 
tion,  46. 

right  of,  to  bring  action  for  wages  of  child,  151. 
Partner,  surviving,  joinder  of,  demurrer,  267. 

firm  name,  suit  by,  255. 
Partners,  cannot  arrest  each  other,  162. 

fraud  by,  arrest  for,  166. 

how  judgment  rendered  against,  362,  364. 
Partnership,  action  to  recover  money  arising  out  of,  47. 

counterclaim,  263. 
Parties,  appearance  of,  144. 

who  may  be  joined  as.  80,  151,  152,  245. 

defendants  jointly  liable,  153. 

defect  of,  ground  of  demurrer,  267. 

action  against  joint  debtors  not  served,  154. 

where  employee  is  a  party,  154. 

when,  can  and  cannot  be  examined,  334. 

when  prevailing  party  to  recover  costs,  437. 

when  neither  party  to  recover  costs,  439. 

confined  in  prison,  taking  deposition,  306,  308. 

costs  to  either  party,  440. 

when  party  not  allowed  fees  as  a  witness,  455. 

appeal  when  adverse  party  has  died,  417. 

proceedings  when  party  dies  pending  appeal,  418 

order  of  siibstitution  in  such  ca*e,  419. 

relation  of,  73. 

misjoinder  of.  ground  of  demurrer,  267. 

nonjoinder  of,  ground  of  demurrer,  when.  207: 

surviving  partner,  ground  of  demurrer,  when,  267. 


598  Index. 

Payment,  sotting  up.  amendment,  273. 
Penalty,  action  to  recover  a,  jurisdiction  in,  56. 

action,  where  to  be  brought  to  recover,  58. 

justice  to  fix  amount,  11. 

Building  Code,  violation  of,  56. 

bureau  for  recovery  of,  56. 

commissioner  of  docks,  56. 

department  of  health,  action  to  recover,  57. 

fish-poles,  penalty  for  driving,  57. 

indorsement,  on  summons  in  action  to  recover,  58. 

oysters,  taken  out  of  Harlem  river,  57. 

pilot  commissioners,  57. 

port  warden,  57. 

steamboats,  57. 
People  of  the  State,  verification  by,  270. 
Perjury  is  contempt  of  court,  100. 
Person.     (See  also  Poor  Person.) 

jurisdiction  in  action  to  recover  damages  for  injury  to,  73. 

jurisdiction   and  injury  to   property,   one   does   not   bar  recovery   on  the 
other,  75. 

personal  service  of  process,  207. 

on  premises  of  another,  protection  of,  77. 

visitor  to  apartment-house,  injury  to,  78. 
Petition  for  leave  to  prosecute  as  poor  person,  155-158. 

when  can  be  made,  155. 

contents  of,  156. 

when  not  sufficient,   156. 

to  be  filed,  157. 
Physician,  action  for  negligence  of,  77. 

father  liable' to,  for  services  of  infant  by,  46. 

penalty  for  giving  false  certificate  to  juror,  318. 

not  to  disclose  professional   information,  334. 
Pilot  commissioners,  fines  and  penalties  for,  57. 
Pilotage  fees,  action  to  recover,  57. 
Plaintiff,  in  what  district  action  must  be  brought  against,  119. 

consent  of.  to  transfer  action,  120. 

may  elect  district  in  which  to  commence  action  regarding  milVc  and  cream 
cans.   121. 

poor  person,  155. 

leave  may  be  annulled  in  such  case,  158. 

marshal  to  notify  in  arrest  cases,  172. 

cannot  take  judgment  by  default  without  verified  complaint,  327. 

failure  to  appear  and  dismissal  of  action,  334. 

allowed  latitude  in  examination  of  adverse  witness,  337. 

costs,  when  allowed  to  the,  440,  441. 


Index.  599 

Plaintiff,   must  prove  his  case,  except  on  contract  where  there  is  a  verified 
complaint,  248. 
must  prove  his  case,  no  verified  complaint,  248. 
must  prove  his  case,  omission  to  plead  is  not  an  admission,  249. 
Plead,  omission  to,  is  not  an  admission,  249. 

Pleading,  240-284.     (See  also  Answer;   Complaint;   Demurrer;   Counterclaim; 
Reply.) 
amendment  of,  41,  266,  272. 
amendment  of,  after  removal  of  action,  93. 
administratrix  and  individually,  245. 
attachment,  205. 
adjournment,  default,  249. 
alias  summons,  return  of  marshal,  249. 
amendment  of,  costs  on,  272,  444. 
answer.     (See  also  Answer.) 
answer,  what  to  contain,  242,  257. 
answer,    affirmative    defenses,    what    must    be    pleaded,    what    cannot   be 

proven  under  a  general  denial,  258. 
answer  of  title,  278-283.     (See  Answer  of  Title.) 
abbreviations  in,  242. 

bill  of  particulars,  243,  244.     (See  also  Bill  of  Particulars.) 
bond,  breach  of  and  assignment,  246. 
bastardy  bonds,  178. 
construction  of,  243,  253,  274. 
construction  of,  to  be  liberal,  274. 

causes  of  action,  to  be  separately  stated  and  numbered,  252. 
contract,  several  breaches  of  one,  246. 
contract  and  tort,  246. 
contract,  express  or  implied,  245,  253. 
conversion  and  freight,  246. 
counterclaim,  what  can  be  joined,  247. 
chattels,  with  or  without  damages,  247. 
claims  against  a  trustee,  247. 

claims  arising  out  of  the  same  transactions,  et  cetera,  247. 
complaint,  251.     (See  Complaint.) 
complaint  need  not  be  verified,  249. 
conclusions  of  law  not  to  be  pleaded,  252. 
counterclaim,  262-266.     (See  Counterclaim.) 
condition  precedent,  how  pleaded,  274. 
deceit,  judgment  in  action  for,  249. 
demurrer,  266-270.     (See  Demurrer.) 
defendant  may  offer  to  allow  judgment  on  compromise,  250. 

when  offer  may  be  made,  250. 

removal  and  appeal,  effect  of  offer,  250. 

oral  acceptance,  251. 

offer  to  pay  into  court  in  mechanic's  lien  cases,  250. 


COO  Index. 

Pleading,  English,  to  be  in,  242. 

extending  time  to  answer,  demur  or  plead,  241,  242. 

exhibit  of  accounts  at  instance  of  adverse  party  may  be  ordered,  271,  272- 
(See  Bill  of  Particulars.) 

facts  not  fictions  must  be  pleaded,  253,  254. 

hypothetical   or  alternative  not  allowed,  253. 

injuries  to  property,  246. 

injuries   to  property  and  fraud,  246. 

immaterial  variance  in,  to  be  disregarded,  275,  329. 

includes  complaint,  answer  or  demurrer,  241. 

indorsement  upon  the  summons,  249. 

interpleader  by  order,  in  certain  cases,  282-285.     (See  Interpleader.) 

judgment,  how  pleaded,  260,  274. 

material  variance,  how  provided  for,  275. 

mechanics'  liens,  proceedings  on  return  of  summons,  249. 

misnomer,  when  waived.  277. 

money  lent  and  fraud,  246. 

may  be  oral  or  in  writing,  241. 

may  be  verified  or  not,  241. 

omission  to  plead,  249. 

on  joinder  of  issue,  241. 

objections  to,  on  trial,  334. 

personal  injuries.  246. 

penalties,  may  be  joined  with  other  action,  247. 

promissory  note  and  collateral,  246. 

plaintiff  to  prove  his  case  except  on  contract,  where  complaint  verified,  248. 

private  statute,  how  pleaded,  256,  273. 

parties,  who  may  be  joined,  245,  246. 

reply  not  necessary  in  this  court,  244,  269. 

requirements  concerning,  verified,  270.     (See  Verification.) 

removal  of  action   in,  95. 

service  of,  244. 

service  of  summons  upon  attorney,  when  sufficient,  249. 

special  damages,  246. 

unauthorized  issue  of  summons,  249. 
1  verification,  245,  270,  271. 

what  must  be  specially  alleged,  256,  257. 

Avhat  causes  of  action  may  he  joined  in  the  same  complaint,  245. 

what  must  appear  upon  the  face  of  the  complaint  to  join  causes  of  action, 
245,  248. 

when  to  be  deemed  a  failure  of  proof,  275. 

when  proof  of  corporate  existence  necessary,  276. 
Pledgee,  when  liable  for  conversion,  44. 

Policeman  may  serve  process.  <  t  cetera,  in  health  department  cases,  139 
Poor  person,  as  to  who  may  prosecute,  et  cetera,  123. 

who  may  petition  for  leave  to  prosecute  as,  155. 


Index.  601 

Poor  person,  defined,  155. 

application,  when  can  be  made,  155. 

guardian  cannot  sue  as,  155. 

infant  can  sue  as,  155. 

wealth  of  guardian  ud  litem,  no  answer  to  motion,  155. 

nonresident  cannot  sue  as,  155. 

jury  fees,  155,  453. 

practice  on  removal  of  action  by,  155. 

statute  to  be  strictly  construed,  156. 

contents  of  petition,  156. 

when  not  sufficient,  156. 

on  removal  of  action,  new  order  to  prosecute  as  a,  must  be  obtained,  95. 

order  and  petition  to  be  filed,  157. 

when  counsel  assigned,  157. 

when  leave  may  be  annulled,  157. 

agreement  with  attorney,  157. 

when  defendant  may  defend  as  a,  157. 

defendant's  order,  158.     ■ 

leave  may  be  annulled  as  in  case  of  plaintiff,  158. 

appeal  by,  159. 

costs  in  favor  of  petitioner,  159. 

stay,  nonpayment  of  costs,  159. 

may  prosecute  without  paying  jury  fees,  315,  453. 

costs  on  former  application,  439. 

to  pay  no  fees  except  when  jury  trial  demanded,  453. 

nurse,  as  to  costs,  et  cetera,  453. 
Port  wardens,  action  to  recover  penalty  for,  57. 
Possession  of  property  in  action  of  replevin,  61. 

of  property,  right  of,  215. 

of  property  in  replevin,  258. 
Power  of  court  limited.  42.     (See  Court.) 
Powers  of  justice,  10,  12.     (See  Justice.) 
Practice,  rules  of,  adopted  by  board  of  justices,  109. 
Preface,  iii. 

Private  statute,  how  pleaded,  256,  273. 
Privilege,  from  arrest,  when  entitled  to  be  discharged,  et  cetera,  181. 

attorney,  when  privileged  from  arrest,  182. 

of  witnesses,  290,  291. 
Proceeding.     (See  Action;  Special  Proceeding.) 

court  may  grant  stay  of  proceeding,  354. 

when  party  dies  pending  appeal.  418. 

appeal  when  adverse  party  has  died,  417. 
Process,  commission  to  take  testimony  regarded  as,  296. 

erroneous,  irregular,  or  void,  12. 

personal  service  of,  206, 

service  of,  may  be  made  in  any  part  of  the  city  oi  New  York,  105. 

mechanic's  lien  action  —  anywhere  in  the  State,  105. 


602  Index. 

Process,  to  be  served  and  executed  by  marshal,  1G0,  389. 

within  city  limits,  390,  397. 
Promise,  when  not  a  fraud,  72. 
Promissory  notes,  lost  negotiable  paper,  action  upon,  47,  251. 

replevin   for,  61. 

complaint  in  action  upon  bills  and  notes,  251,  252. 
Proof,  what  to  be  deemed  a  failure  of,  2.17k 

corporate  existence  when  necessary,  276. 

variance  between  bill  of  particulars  and,   244. 

of  fraud,  72. 

of  knowledge,  73. 

and   pleading,   variance,    275. 
Property.     (See  also  Title  to  Real  Property.) 

injury  to,  and  to  person,  one  does  not  bar  recovery  on  the  other,  75. 

consequential  damages,  82. 

hiring  of,  when  no  action  can  be  brought  on,  85. 

in  legal  custody,  211. 

description  of,  in  replevin  action,  214,  223. 

injury  to,  defined,  74. 

interest   in,   60,  62. 

offer  to  restore,  01. 

possession  of,  in  replevin,  61.     - 

accidentally  destroyed,  replevin  for,  61. 

artisan's  lien  on,  63. 

out  of  the  county,  replevin  for,  62. 

wife's,  02. 

exempt  from  levy,  et  cetera,  what  is,  194,  307,  389. 

real,  bound  for  ten  years  when  transcript  filed,  360. 

right  of  possession  of,  215. 

exemption  of,  on  execution,  not  necessary  for  creditor  to  claim,  372. 

enforcement  of  lien  upon  personal,  240. 

value  of,,  to  be  stated  in  affidavit  in  replevin,  215. 

value  of,  or  special  property   in,  to  be  fixed  by    judgment  or  verdict  in 
replevin,  230. 
Provisional  remedy,  attachment  usually  a,  200. 
Public  officer,  verification  by,  270. 

officer,   personal   attendance  as  witness  not  required,   291. 

policy,  agreement  to  go  bail  not  against,  224. 
Punishment  for  disobeying  order  to  take  deposition  of  witness  conditionally, 
307. 

Qualification  of  justices,  13,  223. 

of  jurors,  318. 
Queens,  borough  of,  names  of  the  justices,  clerks,  court  officials,  and  marshals, 
with  their  residences,  days,  places  of  holding  court,  and  telephone  num- 
ber, xxxii. 
districts  in  the  borough  of,  37,  38. 


Index.  603 

Reargument  of  appeal,  432. 

Records  not  to  be  removed  by  subpoena,  291. 

Referee,  this  court  has  no  power  to  appoint,  84. 

Reference,  no  jurisdiction  to  make  order  of,  84. 

Relation  of  parties,  73. 

Relations  Law,  Domestic,  47. 

Relationship  of  counsel,  10. 

of  justice,  11. 
Relief,  no  affirmative,  on  ground  of  fraud,  86. 
Removal  or  death  of  justice,  not  to  impair  proceeding,  13,  113. 
Removal  of  action,  S6-95. 

in  borough  of  The  Bronx,  or  any  district  in  the  borough  of  Manhattan,  to 
the  City  Court  of  the  city  of  New  York,  87. 

in  any  other  district,  to  the  County  Court,  or  Supreme  Court,  87. 

adjournment,  waiver  of  right  of,  after,  92,  93. 

adjournment  for  justification  of  sureties  in  undertaking  on,  93. 

amendment    of   pleadings    after,   93. 

amendment  of  undertaking  on,  88. 

amount,  interest  on  claim,  89. 

amount  of  recovery  limited  as  in  court  below,  after,  93. 

amount  more  than  $250  may  be  recovered  after,  94. 

answer,  supplemental  on,  92. 

application  must  be  made  before  adjournment,  87,  88,  92. 

clerk  must  deliver  papers  to  clerk  of  court,  87. 

consolidation  of  actions  on,  89. 

constitutionality  of  the  statute,  89. 

costs  on,  89. 

costs,  security  for,  after,  95. 

damages,  or  value  of  chattel,  must  exceed  $250,  87,  89. 

defendants  must  all  unite  in,  87. 

defendants,  when  have  been  made  parties  to  prevent  proceedings,  87. 

increase  of  amount    after,   94. 

increasing  amount  sued  for,  91. 

improper,  94. 

issues,  no  change  of,  after,  95. 

jurisdiction  and  practice  on,  94. 

mandamus  to  order,  91. 

mistakes,    omissions,   defects,   irregularities,   and   general   rules  respecting 
affidavits   and  undertakings,  52,  91,  171,  193,  207,  212,  331,  409. 

offer  to  allow  judgment  on,  91,  250. 

pleadings   on,   94,   95. 

pleadings,  amendment  of,  after,  93. 

poor  person,  action ;  practice  on,  155. 

poor  person,  new  order  after,  95. 

proceedings  after,  93. 


604  Index. 

Removal  of  action,  remanding  for  amendment,  92. 

recovery,  none  beyond  amount  in  City  Court,  95. 

status  of  action  after,  92. 

stay  of  proceedings  in  this  court  by  Supreme  Court,  92. 

security  for  costs  after,  95. 

supplemental   answer  after,  95. 

undertaking  on,  87. 

undertaking  on.  insufficient,  91. 

undertaking,  tender  of.  on,  92. 

undertaking,  tender  of,  on,  ceases  jurisdiction,  85,  90. 

undertaking,  defective,  remedy  for,  after,  94. 

undertaking,  duty  of  justice  on  approving,  90. 

undertaking,  remedy,  if  justice  refus*  to  accept,  90. 

undertaking,  estoppel,  waiver  of  jurisdiction  by  giving,  90. 

undertaking,  exception  and  justification  of  sureties  on,  91. 
Rent  due  on  holiday,  48. 
Renewal  of  execution.  (See  Execution.) 
Repeal,  when  earlier  law  repealed,  466. 

laws  repealed,  467. 

schedule  of  laws  repealed.  467. 

Greater  New  York  Charter,  467. 

Consolidation  Act,   468. 

Code  of  Civil  Procedure,  473. 

table  showing  disposition  of  laws,  474. 
Replevin,  208-235.     (See  also  Chattel.) 

action,  joinder  of,  with  others,  236. 

action,  what  based  upon,  59. 

action,  when  lies,  59. 

action  upon  undertaking  in,  53. 

action,  discontinuance  of,  sureties  in  undertaking  liable  on,  50. 

action,  not  affected  by  failure  to  reply,  235. 

action  upon,  undertaking  on,  234. 

action  against  marshal  on  claim  of  third  person,  227. 

action  to  recover  a  chattel,  209,  211. 
i         additional  undertaking,  217. 

affidavit  and  undertaking  by  plaintiff,  211,  212,  216. 

affidavit  therefor,  before  commencement  of  action,  212. 

affidavit,  setting  aside  the,  in,  215. 

affidavit,  additional  or  supplemental,  allowed,  213. 

affidavit,  irregularity  in.  when  waived,  214. 

affidavit,  when  agent  may  make,  217. 

affidavit,  value  of  property  must  be  stated  in,  215. 

allowance  or  approval  of  undertaking  in,  212.  225. 

amendments  to  undertaking  in,  212,  217,  223,  225. 

answer  of  title  in  third  person,  228. 


Index.  605 

Replevin,  bailee  and  bailor,  tender,  209. 

care  of  property  by  marshal,  220. 

chattels,  when  and  to  whom  marshal  to  deliver,  225. 

chattels,  when  and  where  to  be  returned,  222. 

chattels,  delivery  of  part  of,  to  defendant,  when,  222. 

chattels,  where  several  are  to  be,  216,  223. 

claim  of  title  by  third  person,  proceedings  thereupon,  226. 

compensation  of  marshal  in,  219. 

complaint  in,  210,  215,  230. 

complaint,  dismissal  of,  in,  233. 

complaint,  where  chattel  injured,  230. 

custody  and  control  of  goods  in,  60. 

damages,  how  ascertained  on  default  in,  231. 

damages,  when  chattel  injured,  et  cetera,  by  defendant,  229. 

damages  for  value  of  chattels  in,  60. 

defendant's  claim  as  to  claim  of  third  person,  227. 

defendant   may  demand  judgment  for  return  of   chattel,  228. 

defendant,   when  to  except   to  sureties,  proceedings  thereon,  221. 

defendant  may  reclaim  chattel,  proceedings  thereupon,  222. 

delivery  of  property,  how  money  recovered  by  same  judgment  may  be 
collected,  229. 

demand  before,  213,  214. 

demand,  when  not  necessary,  215. 

detention  after  trial,  210. 

detention,  measure  of  damages,  230. 

description  of  property   in,  214,  223. 

exemption  of  property  from,  215. 

estoppel  of  sureties  by  undertaking,  50,  51. 

execution,  contents  of,  in,  233. 

execution,  must  have  been  returned  unsatisfied  before  action  can  be  main- 
tained against  sureties   in  undertaking  on,  51. 

exception  to,  and  justification  of  sureties  on  undertaking  in,  212,  217, 
223,  224. 

goods,  mingling,  60. 

injury,  et  cetera,  no  defense,  234. 

irregularity  in  affidavit,  waiver  of,  214. 

irregularity,  objection,  when,  and  how  to  be  taken,  214. 

indemnity  to  marshal  against  claim  by  third  party,  228. 

interest  in  property,  60. 

judgment  in,  does  not  affect  right  of  action  to  recover  damages,  211,  230. 

judgment  or  verdict,  what  to  state,  230. 

judgment  or  verdict,  et   cetera,  for  part  of  several  chattels,  231. 

judgment,  final,  et  cetera,  232. 

judgment,  alternative,  232. 

judgment,  erroneous,  233. 


606  Index. 

Replevin,  jurisdiction  in   action  of,  59. 

jurisdiction  to  issue  or  vacate  requisition  to,  78. 

marshal,  power  of,  in,  219,  233. 

marshal's  return,  evidence  therein,  234. 

marshal's  proceedings  on  claim  of  third  person,  227. 

marshal  to  keep   property   in  possession,  when  and  how  to  deliver,  219, 

220. 
marshal's   return   to   requisition  by,  220,  234. 
marshal,  compensation   of,  219. 
marshal,  owner  taking  property  from,  219. 
money,  action  to  recover  by,  61,  229. 
mistakes,  omissions,  defects,  and  irregularities,   and  general  regulations 

respecting  affidavits,  bonds,  and  undertakings  in,  52,  91,  171,  193,  207, 

212,  214,  217,  223,  331,  409. 
offer  to  restore  property,  61. 
ownership,   sufficient   allegation   of,   214. 
penalty  for  wrong  delivery  by  marshal,  226. 

what  should  be  alleged  in  action  for  penalty  for  wrong  delivery,  226. 
possession  of  the  property,  60,  61. 
possession,  right  of,  215. 

proceedings  where  summons  not  personally  served,  235. 
promissory  notes  and  checks,  61. 

property  fraudulently   acquired  and  disposed  of,  60. 
property  accidentally  destroyed,  61. 
property,  taking,  from  other  than  defendant,  210. 
property,  taking,  out  of  the  county,  62. 
property,    wife's,   62. 

property,  how  executed,   if  property  concealed,  219. 
property,  legal  custody  of,   in,   211. 
property,  care  of,  by  marshal,  220. 
requisition  of  justice,  218. 
requisition,  action  when  no,  235. 
requisition,  action  when  no,  how  executed,  218. 
reversal  of  judgment  in  action,  210. 
sheriff,  action  against,  to  recover  property,  62,  210. 
surety  may  continue  action  of,  62. 
surety,  failure  of  plaintiff's  to  justify  in,  221. 
surety,  effect  of  exception  to  plaintiff's,  by  defendant,  221. 
surety,  qualification  of,  223. 
surety,  disqualification  of,  223. 
surety,  justification  of,  224. 
surety,  failure  of,  to  justify,   224. 
surety,  further  time  to  justify,  224. 
surety  company,  225. 
surety,  rejection  of  one,  remedy,  225. 


Index.  607 

Replevin,  surety,  exception  to  and  justification  of,  212,  217,  223,  224. 

tenants   in   common,  action  by,  62. 

title  by  third  person,  claim  of,  proceedings  thereupon,  226. 

undertaking,  exception,  and  justification  of  sureties,  212,  217,  223,  224. 

undertaking,  plaintiff's,  in,   211,   212,  216,  223. 

undertaking,  additional,  217. 

undertaking,  defective,  remedy,  217. 

undertaking  in   action    in,   53. 

value,  special  interest,  62. 
Reply,  no  provision  for,  241,  244. 

to  counterclaim  not  necessary,  269. 
Report  of  commission  on  revision,  xix. 
Requisition  of  justice  for  replevin,  218. 

of  justice  for  replevin,  how  executed,  218. 

of  justice  for  replevin,  return  of  marshal  to,  220. 

no,  action  to  recover  a  chattel  may  be  maintained,  235. 
Representative  capacity,  complaint  in,  256. 

counterclaim,  265. 
Respondent,  service  of  notice  of  appeal  on,  407. 
Restaurant  keeper,  liability  of,  as  bailee,  43. 
Restitution,  upon  reversal  on  appeal,  419. 
Return,  411-416.  y 

appeal,  how  made  up,  what  to  contain,  et  cetera,  411. 

amending  or  correcting,  412. 

amendment  of,  by  justice,  412. 

attacking,  413. 

affidavits  cannot  be  used  to  support  a  defective,  414. 

conclusive  on  argument  of  appeal,  413. 

contradictory  statement  in,  413. 

contents  of,  413. 

defective,  414. 

denial  of  service  of  summons,  414. 

evidence  excluded,  414. 

evidence,  omission  of,  in,  remedy,  414. 

extension,  time  to  file,  415. 

false,  liability  of  justice  for,  12. 

failure  to  file,  415. 

fee  for  nonpayment  of,  415. 

further,  415. 

lost  original  or  certified  copy,  416. 

motion  to  dismiss  appeal    for  failure  to  file,  415. 

marshal's,  presumptive  evidence,  52. 

marshal's,  to  requisition  for  replevin,  220. 

order  to  show  cause  to  procure,  amended,  415. 

rules  as  to,  on  appeal,  416. 


608  Index. 

Return,  stenographer's  minutes  lost.  41ti. 

summons,  day  of,  pleading,  et  cetera,  241. 
Revivor  of  action,  123. 

Richmond,  borough  of,  names  of  the  justices,  clerks,  court  officials,  and  mar- 
shals, with  their  residences,  days,  places  of  holding  court,  and  telephone 
number,  xxxiii. 

districts  in  the  borough  of.  38. 
Rules  for  examination,  taking  deposition  conditionally,  309. 

respecting  affidavits,  bonds,  and  undertakings,  52,  91,  207,  212. 

respecting  allowance  of  counterclaim,  203. 
Rules  of  Practice,  adopted  by  board  <>f  justices,   10!),  382. 

of  Supreme  Court  apply  to  this  court,  117. 

of   courts  of  record,   how   made  and  revised,   117. 

to  be  published,  117. 

construction  of.  made  by  the  court.  118. 

disregarding,  118. 

legality  of.  118. 

conflict  with  court  decisions,  118. 

as  to  return  on  appeal,  416. 

Sale,  action  on  conditional,  agreement,  et  cetera,  how  brought,  237. 

by  sample,  and  goods  manufactured  according  to  specifications,  45. 

conditional  vendor  and  vendee  in,  238. 

conditional  and  reservations  in  contracts   for  sale  of  goods  and  chattels, 
238. 

conditional  action  to  recover  instalments  on,  46. 

conditional,  when  plaintiff  may  recover  goods,  59. 

conditional,  exempt  from  lien,  64,  65,  67. 

fraudulent,  73. 

mechanic's  lien  action,  69. 

of  property  to  satisfy,  68. 

written  contract  of,  conditional,  when  no  action  can  be  brought  on,  85. 
Salary  of  justice,  14,  15. 

execution  on  supplementary  proceedings  against  justice,  15. 
Sample,  sale  by,  and  goods  manufactured  according  to  specifications,  45. 
Saturday,  when  court  and  clerk's  office  may  be  closed,  115,  382. 
Saving  clause  of  this  act,  465. 
Seal  of  the  city  of  New  York,  3. 

court  shall  have  official,  116. 

what  is  sufficient  sealing,  116. 

when  court  to  have  new,  116. 

presumptive  evidence  of  consideration,  336. 

to  commission  to  take  testimony,  296. 


Index.  609 

Sections  of  the  Code  of  Civil  Procedure  not  applicable  to  this  act,  466. 
Security  for  costs  as  a  condition  for  commission,  297. 

in  poor  person  case,  156. 

when  cannot  be  required  in  action  removed,  297. 
Seduction,  no  jurisdiction  in  action  for,  73. 
Service,  of  summons,  is  commencement  of  action,  122. 

of  alias  summons,  128. 

method  of,  of  summons,  129. 

on  attorney  of  summons,   not  followed  by  appearance,  confers   no   juris- 
diction, 130. 

upon  managing  agent  of  corporation,   130. 

defects  in  affidavit  of,  may  be  amended,  131. 

designated,  131. 

on  election  day,  131. 

fraud  in,  131. 

modes  of  serving  summons,  133,  137. 

substituted,  of  summons,  133,  137. 

process  cannot  be  served  on  Sunday,  133. 

of  summons,  proof  of.  13G. 

admission  of,  and  affidavit  of,  137. 

amendment  of,  affidavit  of,  137. 

of  precept  in  summary  proceedings,   139. 

of  summons  and  warrant  on  defendant  in  attachment  case,  198. 
Services,  jurisdiction  in  action  to  recover  for  loss  of,  73. 
Settlement  of  case  on  appeal,  416. 
Set-off,  261. 

of  costs  and  recovery  on  appeal,  420. 
Sheriff.     (See  Marshals.) 

action  against,  62,  210. 

and  their  officers,  disqualified  from  being  bail  or  surety,  224. 
Slander,  no  jurisdiction  in  action  for,  73. 

Society  of  husband  or  wife,  no  jurisdiction  in  action  for  loss  of,  73. 
Special  proceeding.     (See  Action;  Proceeding.) 

process  in,  may  be  served  in  any  part  of  the  city  of  New  York,  105. 

may  be  continued  from  day  to  day,  113. 

may  be  continued  before  another  justice,  while  action  cannot  be,  326. 
Stallions,  lien  on,  for  services,  68. 
Stay  of  proceedings,  disregard  of,  is  contempt  of  court,  103. 

of  proceedings  for  nonpayment  of  costs,  in  poor  person  case,  159. 

of  proceedings,  court  may  grant,  not  to  exceed  five  days,  354. 

of  proceedings,  undertaking   on   appeal,  410. 

of  proceedings,  effect  of  the  stay,  411. 

of  execution,  jurisdiction  to  grant  or  vacate,  78. 

of  proceedings  by  Supreme  Court  in  this  court,  92. 

39 


610  Index. 

Statute,  construction  of,  as  to  appeals,  401. 

of  Frauds,  48. 

as  counterclaim,  263. 

defense  of,  258. 

of  Limitations,  six  years,  55. 

of  Limitations  must  be  pleaded,  258,  263. 

of  Limitations  pleaded,  how  must  be,  261. 

short,  wage-earner,  368. 
Statutory  Construction  Act,  141. 

liens,  68. 
Steamboat,  actions  to  recover  penalties  and  fines,  57. 
Stenographer  to  be  appointed  by  justice  and  removed  for  cause,  376. 

ptriod  of  appointment  of,  376. 

salary  of,  376. 

fees  of,  378,  455. 

contempt,  when  in,  103,  455. 

minutes  of,  when  must  be  furnished,  455. 

no  copy  minutes  for  justice  not  taxable,  455. 

must  furnish  clerk  minutes  of  evidence  for  return  on  appeal,  411. 

when  minutes  lost,  remedy  on  appeal,  410. 
Stipulation  that  justice  have  additional  time  to  decide  case,  317. 

hearing  on  appeal,  dismissal,  reversal  on  stipulation,  420. 
Storage,  private,  no  lien  for,  67. 

enforcement,  68. 
Subject-matter,  consent  and  jurisdiction,  41. 

jurisdiction  of,  84. 
Submission  of  controversy  upon  facts  admitted,  338. 

of  controversy  upon  facts  submitted,  42. 

papers  to  be  filed,  339. 

subsequent  proceedings  regulated,  339. 
Subpoena.     (See  Witness.) 

witness  to  testify,  288,  290,  292,  293. 

duces  tecum  books,  et  cetera,  289,  291. 

records  not  removed  by  virtue  of,  291. 

how  served,  291. 

production  of  books  of  account,  291. 

refusal  to  produce  papers  under,  when  contempt,  104. 

to  witness,  commission  to  take  testimony  within  the  State,  106. 
Substituted  service  of  summons,  133. 

order  for,  133. 

affidavit  to  obtain  order  for,  134. 

amendment,  error  in  name,  134. 

upon  infant's,  134. 

irregularity,  misnomer,  134. 

mechanic's  actions,  134. 

how  service  must  be  made,  135. 


Index.  611 

Substituted  service,  papers  to  be  filed,  proof  of  service,  135. 

defendant,  when  allowed  to  defend,  i36. 

when  defendant  in  default.  141. 

not  at  defendant's  residence,  84. 
Summary  proceeding,  jurisdiction  of,  70. 

jurisdiction  to  make  final  order  in.  78. 

petition  and  answer  may  be  amended,  70. 

trial,  with  or  without  a  jury,  70. 

verdict  may  be  directed  or  set  aside,  70,  71,  81. 

appeal  from  final  order  in,  399. 

a  new  trial  may  be  granted  or  denied,  70. 

appeal  therefrom,  70. 

note  on,  382.  : 

equitable  defense  may  be  set  up  in,  85,  86. 

fees  in,  458. 

counterclaim  allowed   in,  2G3. 

service  of  precept  in,   139,  390. 
Summons,   124-127. 

affidavit  of  service  of,   137. 

attorney  may  serve,  137. 

attachment  will  be  vacated  if  papers  not  with  summons,  206. 

attachment,  service  of,  to  acquire  jurisdiction  of,  82. 

attachment  allowed,  issued,  and  served  before  Bervice  of,  is  completed, 
186. 

amendment  of,  85,  124,  125,  126. 

alias,  service,  128,  129,  390. 

alias,  return  of  marshal  on,  249. 

bastardy  and  abandonment  bond  action,  new,  129,  277. 

change  of  name  in,  125. 

corporation  counsel  may   issue,  127. 

cannot  be  served  on  Sunday,  133. 

designation  by  resident  of  person  upon  whom   to  serve,  during  absence 
from  the  city,  18S. 

execution  against  person,  where,  may  issue,  143. 

fictitious  name  should  appear  in,  84,  123,  125,  249. 

fictitious,  unauthorized,  249. 

form  of,   120. 

fraud  in  service  of,  void,  131. 

irregular,  if  served  by  plaintiff,  139. 

indorsement  on,  where  execution  against  person,  346,  382. 

indorsement  on,  in  action  to  lecover   penalty,  58,   142,   143. 

if  not   indorsed,   no   jurisdiction   acquired,   85. 

joining   issue  on    return   day  of,   241. 

judgment  against  person  not  served  with,  remedy,  404,  406. 


612  Index. 

Summons,  jurisdiction  not  acquired,  if  not  served,  132. 

mechanic's  lien   action,  summons  may  be  served  anywhere  in  the  State,  105. 

name,  want  of.  in.  125. 

name,  insertion  of  real,  in,  125. 

requisites  of,    124. 

replevin   in   action  against   marshal   in  action  by  third   person,   on  claim 
of  title  in  replevin,  when  to  be  issued,  227. 

not  personally  served  in  action  of,  proceeding,  235. 

return  day  of,  139. 

service  of,  on  defendant's  attorney,  84. 

service  of,  not  a  fact,  84. 

service  of,  substituted,  not  at  defendant's  residence,  84. 

service  of,  substituted  service,  order  for,  et  cetera,  133. 

service  of,  who  may  serve,  136. 

service  of,  by  plaintiff  in  his  own  case,  cannot  be  done,  133. 

service  of,  and  warrant  in  attachment    case  on  defendant,  198. 

service  of.  may  be  served  in  any  part  of  the  city  of  New  York,  105. 

service  of,  in  any  part  of  the  State  in  mechanic's  lien  actions,  105,  132. 

service  of,  is  commencement  of  action,  122. 

service  of  alias,  128,  129,  390. 

service  of,  method,   129-133. 

service  of,  on  Sunday,   void,   133. 

service  of,  on  election  day,  void,  131. 

service  of,  on  lunatic,  void,   132. 

service  of,  on  holiday,  legal,   132. 

service  of,  by  marshal,  cannot  in  his  own  case,  132. 

service  of,  on  nonresident  witness,   133. 
Sunday,  court  not  to  be  open  on,  116. 

process  cannot  be  served  on,  133. 

extends  from  midnight  to  midnight,  141. 

if  last  day  to  render  judgment  falls  on,  court  to  render  judgment  on  pre- 
ceding day,  313. 

trial  in  court  on,  illegal  and  void,  10,  337-343. 

order  returnable  on,  is  a  nullity,  352. 
Supplemental  answer,  261.     (See  Answer.) 

after  removal  of  action,  92,  95. 
Supplementary  proceedings  against  justice,  15. 
Supreme  Court,  removal  of  action  to,  when,  87. 

stay  of  proceedings  by.  in  this  court.  92. 
Sureties,  liability  of,  52.     (See  also  Bonds;  Undertakings.) 

agreement  to  go  not  against  public  policy,  224. 

adjournment  for  justification  of,  on  undertaking,  on  removal  of  action,  93. 

•cause  of  action,   liable  only  for,  50. 

disqualified,  ir.\. 

effect  of  defendant's  exception  to,  in  replevin  action,  221. 


Index.  613 

Sureties,  exception  to  and  justification  of,  52,  91,  207,  223,  224. 

joint  and  several  liability,  f>2. 

liability  of  bail,  debtor  insolvent  in  action  for  an  escape,  58. 

marshal's  return  is  presumptive  evidence  against,  52. 

modification  of  contract  with  insurance  agent  discharges,  52. 

qualification  of,  required  by  this  act,  223. 

return  of  prisoner  in  action  for  an  escape   against,  59. 

replevin  action,  surety  may  continue,  62. 

replevin  action,  failure   to  justify  in,  221. 

title  to  real  property  in  question,  liability  of,  85. 

sections  applicable  to  undertaking,  et  cetera,  207. 
Surety  company  may  execute  undertaking   for  replevin,  which  must  be  ap- 
proved by  the  court,  210. 

false  swearing  of,  is  contempt  of  court,  100,  101. 

exception  to,  and  justification  of,   171,  182,  193,  331,  409. 

agreement  with,  for  deposit  with  trust  company,  173. 

company  may  act  as,  on  undertaking  on  appeal,  409. 

on  undertaking  on  arrest,  may  be  examined,  173. 

return  of  marshal  presumptive  evidence  in  action  against,  389. 

amendment  of  undertaking  on  appeal,  only  with   consent  of,  409. 

exception  to,  on  appeal,  410. 

liability  of  surety  on  undertaking  on  appeal,  410. 
Swearing,  false,  is  contempt,  100. 

Talesmen,  marshal  to  summon,  320. 
Taxation  of  costs,  447. 

by  the  court,  marshal's  fees,  448. 

review  of,  448. 

duty  of  clerk  on,  449. 
Telephone  number  of  court,  xxv. 
Tender  of  lien,  66. 

payment  into  court,  261,  262.     (See  Pleading.) 

undertaking  on  removal  of  action,  92. 
Tenant.     (See  Landlord  and  Tenant.) 

in   common  of  chattel,  action  of  replevin,  62. 
Term  of  election  of  justices,  15. 

of  office  of  justice,  continuance,  10. 

of  office  of  justice,  finishing   trial,    11. 

of  office  of  justice,  extending,  invalid,  15. 

of  office  of  justice,  vacancies   in,    16. 
Testimony,  commission  to  take,  295-304. 

conditionally,  deposition  to  take,  304-311 
Time,  computation  of,  140. 

essence  of,  waiver,  256. 

law  takes  notice  of  fraction  of  day  when  there  are  conflicting  rights,  358. 


614  Index. 

Title,  action  for  damages  for  vendor's  breach  of  contract  to  convey,  good,  48. 
answer  of,  to  real  property   in  question,   170-283,   444,   440    (see  Answer 

of  Title). 

answer  of.  costs  after  discontinuance,  444. 

action  against    marshal  on  claim  of,   by  third  person,  227. 

answer  of,  by  third  person,  228. 

answer  in   conditional  sale  agreement,  237. 

complaint   failing  to  show,  to  sue,  262. 

claim  of,  by  third  person  in  replevin,  226. 

claim  of,   by  third  person  in   replevin,  proceedings  of  marshal  on,  220,  227. 

defendant's  claim  on  claim  of,  by  third  person,  227. 

when  summons  to  be  issued  in  such  action,  227. 

indemnity  to  marshal  in  such  action,  228. 

to  real   property  in   question,   action  upon  undertaking,  53. 

to  real   property   in  question,  no  jurisdiction,  85. 
Tombstcne,  lien  on,  07. 

Tort  and  contract,  amendment  of  complaint,  273. 
Transcript,  amendmentof  judgment  after  filing,  359^ 

clerk,   when,   must   enter   in,   the   words   "  defendant   liable   to   execution 
against   his  person,"  344,   382. 

clerk   not   to   issue,  while  execution  remains   unreturned,  357. 

clerk  to  issue,  how  to   issue,  358. 

effect  of   filing,    359. 

judgment  of  Supreme  Court,  when  docketed  by  filing  of,  358. 

judgment  less  than  $25,  301. 

judgment  docketed  by  the  filing  of  a,   300. 

judgment  against  marshal  to  be  filed  with  county  clerk,  305,  393,  394. 

justice  may  give,  of  proceedings,  ii. 

mechanic's  lien  actions,  359. 

plaintiff  only  has  right  to  file,  359. 

real  property  bound  for  ten  years  on  judgment  docketed  by  the  filing  of 
a,  3t;0. 

when  presumptive  evidence,  113. 
Transfer  of  action,  mandamus,  122. 
Trial,  311-339.     (See  also  Jury.) 

adjournment  of,  285-289,  323. 

adjournment  after  return  of  jury,  conditions,  et  cetera,  321. 

admissions  on  the,  effect  of,  323. 

amendment  of  pleadings  on  the,  323. 

answer,  failure  to,  on  the,  motion  to  dismiss,  324. 

attorney  cannot  be  deprived  of  his  argument  on  the,  323. 

affirmative  of  issue  on  the,  who  has,  and  who  has  not,  335,  336. 

bill  of  particulars,  324. 

challenge,  peremptory,  of  jury  on  the,  number  of,  329. 

challenge,  grounds  of,  329. 


Index.  615 

Trial,   complaint,  motion  to  dismiss  at  close  of  case,  et  cetera,  331,  332. 

complaint,  motion  to  dismiss  on  opening  of  case,  renewal  at  close  of  case, 
332. 

complaint,  motion  to  dismiss,  grounds  must  be  stated,  332. 

complaint,  verified,  not  served,  plaintiff  cannot  take  judgment  by  de- 
fault, 327. 

corporate  existence,  when  proof  of,  unnecessary,  326. 

case  closed,  324. 

conduct  of  the,  322. 

continuing,  326. 

court  may  direct  verdict,  when,  70,  71. 

counsel  reading  to  the  jury  on  the,  326. 

costs,  failure  to  pay  on  the,  does  not  prevent,  287. 

cross-examination,   327. 

defendant's  failure  to  appear,  327. 

defendant,  when  under  arrest,  to  be  had  immediately,  311. 

discontinuance,  327. 

drawing  the  jury  for,  314. 

docket,  when  evidence,  328. 

employee  suing  employer,  jury,  315. 

exception  to  refusal  to  dismiss,  grounds  must  be  stated,  332. 

evidence,  when  papers  on  file  are,  324,  326,  337. 

evidence,  docket,  when,  328. 

evidence,  objections  to,  grounds  of,  must  be  stated,  328. 

evidence,  order  of,  328. 

evidence,  notary  public's  certificate,  when,  333. 

evidence  of  party  may  be  rebutted,  328. 

evidence,  what  is  rebutting,  328. 

evidence,  foreign  corporation,  book  of,  when,  329. 

evidence,  foreign  State,  territory,  or  country,  329. 

evidence,  on  testimony  in  former  trial,  when  admissible,  329. 

evidence,  motion  to  strike  out,  332. 

evidence,  official  certificates,  when,  334. 

evidence,  ordinances  of  cities,  villages,  et  cetera,  may  be  read  in,  334. 

evidence,  printed  copies  of  laws  of  another  State  may  be  read  in,  335. 

evidence,  when  certificate  of  public  officer  is,  335. 

evidence,  seal  presumptive,  of  consideration,  336. 

evidence,  statute  or  resolution  of  the  Legislature,  how  proved  in,  336. 

evidence,  exhibits,  328. 

from  day  to  day,  287. 

granting  or  denying  new  trial  in  summary  proceedings,  70. 

husband  or  wife,  when  competent  and  incompetent  witnesses,  329. 

inspection  of  premises,  when  may  be  had,  329. 

interrupting,  punishment,  90. 

judgment,  issue  of  fact  and  law,  within  what  time  to  be  rendered,  311. 

judgment,  where  both  parties  move  ffr,  on,  328. 


616  Index. 

Trial,  judgment,  estoppel  of  former,  on,  328. 

judgment,  demand  for  prayer  for  relief  not  material,  327. 

jurisdiction,  to  grant  new,  81. 

jurisdiction,  objection  to,  must  be  taken  at  the,  84. 

jurisdiction,  objection  to,  must  be  taken  for  fraud  or   newly-discovered 

evidence,  81. 
jurisdiction,  must  be  raised  at  the,  329. 
jury,  peremptory  challenge  upon,  number  of,  329. 
jury,  grounds  of  challenge  of,  329. 

jury,  examination,  swearing,  and  waiver  of,  on  the,  330. 
jury,  instructions  to  the,  330. 
jury,  taking  out  papers,  331. 
jury,  withdrawing  a,  331. 

jury,  disputed  questions  of  fact  for  the,  328. 
jury,  improper  statement  to,  329. 
jury,  list  of,  to  be  furnished  by  the  clerk,  317. 
jury,  qualifications,  et  cetera,  of,  318. 
jury,  how  summoned  for,  319. 
jury,  ballots  of,  summoned  but  not  drawn,  320. 
jury,  verdict  of  the,  321. 
jury,  dissent  of,  322. 
jury,  polling  the,  322. 
jury,  drawing  the,  314. 
jury,  demand  for,  when  to  be  made,  314 
jury,  employee  suing  employer,  315. 
jury,  of  six,  314,  315. 
jury,  of  twelve,  315,  318. 

jury,  court  may  direct,  to  find  verdict,  when,  10,  316. 
jury,  marshal  in  charge  of,  330. 
justice,  expiration  of  term  of  office,  329. 
justice,  finishing,  after  term  of  office,  11. 
justice,  has  power  to  order  jury,  316. 
justice,  charge  of,  to  jury,  additional  requests,  324. 
mechanics'  lien  actions,  69. 
motion  for  judgment  by  both  parties,  328. 
motion  to  dismiss  at  close  of  case,  331,  332. 
motion  to  dismiss  on  opening  of  case  and  renewal  at  close,  332. 
motion,  waiver  of  motion  to  dismiss,  332. 
marshal  in  charge  of  jury,  330. 
negotiable  paper,  proof  of  loss,  333. 
new  trial,  for  fraud  or  newly-discovered  evidence,  81. 
nonjoinder,  defendant  not  pleading  cannot  raise  on  the,  333. 
objection  to  jurisdiction  must  be  taken  at  the,  84. 
objection  to  jury,  when  must  be  made,  331. 
objection,  necessity  of,  325. 
objection  to  evidence,  grounds  of,  must  be  stated,  328. 


Index.  617, 

Trial,  objection  and  exception,  334. 

objection  to  pleadings  on  the,  334. 

oath  to  marshal,  330. 

oath  to  jury,  330. 

oath  or  affirmation,  how  administered,  334. 

omission  to  charge  jury,  325. 

order  of  evidence,  328. 

proceeding  to,  waives  right  of  removal  of  action,  92,  93. 

perjury,  when  false  swearing  is,  318,  325. 

refusal  to  charge,  325. 

re-quests  to  charge,  325. 

retrial,  313. 

Sunday,  on,  is  illegal  and  void,  10,  337. 

summary  proceedings,  70. 

summary  proceedings,  granting  or  denying  new  in,  70. 

submission  of  controversy  upon  facts  admitted,  338. 

talesmen,  320. 

verdict  of  jury,  321. 

verdict,  altering,  321. 

verdict,  when  court  may  direct,  70,  71,  316,  327. 

witness,  when  husband  or  wife  competent  and  not  competent,  329. 

witness,  conviction  of  crime  not  to  exclude,  337. 

witness,  credibility  of,  325,  326,  337. 

witness,  interested,  swearing  falsely,  325. 

witness,  limiting  number  of,  337. 

witness,  qualification  of,  338. 

witness,  transactions  with  deceased,  338. 

witness,  when  not  excused  from  testifying,  338. 

writing,  disputed,  comparison  of,  on  the,  338. 
Trustee  in  bankruptcy  may  bring  action  in  replevin,  59. 

Undertaking.     (See  also  Bond.) 
action  upon  surety,  49. 
action  on,  to  replevin  chattel,  398. 
action  on,  when  maintainable,  49,  234. 
action,  discontinuance  of,  50. 
arrest  and  imprisonment,  action  on,  49. 
arrest  on  order  of,  169. 

arrest  on  order  of,  right  of  action  on,  what  may  be  recovered,  52,  53. 
appearance  in  court,  action  on,  49. 

amendment  of,  49,  52,  89,  91,  94,  170,  193,  207,  212,  217,  223,  225,  331,  409. 
amendment  of,  on  appeal,  409. 
attachment,  liability  of  sureties  on,  50. 
allowance  or  approval  of,  212,  216,  225. 
answer  of  title,  in,  279,  280. 
answer,  return  of,  in,  278. 


618  Index. 

Undertaking,    answer  of  title,  penalty  for  failure  to  deliver,  281. 

answer  of  title,  action  to  recover  chattel  valid  in  new  action,  282. 

adjournment,  on  long,  287. 

adjournment  by  arrested  defendant  on  applying  for,  175. 

arrest  of  defendant,  to  be  delivered  to  marshal,  172. 

attachment,  192. 

attachment  to  discharge,  efl'ect  of,  199. 

attachment  bond,  and  delivery  on  claim  by  third  person,  199. 

attachment,  when  insufficient,   199. 

appointment  of  marshal  deemed  waived  for  failure  to  file  bond,  395. 

bail  on,  may  he  examined,  173. 

bond  to  he  executed  by  marshal,  390. 

bond,  city  clerk  to  report  canceled,  of  marshal,  to  mayor,  395. 

bond,  appointment  of  marshal  deemed  waived  for  failure  to  rile,  395. 

bond,  bastardy  and  abandonment,  costs  in  action,  and  action  on,  54,  437, 

446. 
bond,  is  synonymous  with,  53. 
bond,  difference  between  bonds  and,  53. 
bond,  of  clerk,  to  be  filed  in  comptroller's  office,  374. 
bond  of  marshal,  389. 

bond  of  marshal,  prosecution  of,  389,  391,  393,  394. 
bail  on,  may  he  examined,  173. 
escape,  sureties  on,  may  be  examined,  50. 
estoppel  of  sureties  by  giving,  50,  51. 
evidence  to  impeach,  51. 
execution  must  have  been  returned  unsatisfied  to  maintain  action  against 

sureties  in  replevin,  51. 
exempt  property,  seizure  of.  action  on  bond  of  constable  for,  51. 
justice,  duty  of,  in  approving,  90. 
justice,  remedy,  if  refuses  to  accept,  90. 
lien,  to  enforce,  on  vessel,  54. 
mistakes,   omissions,   defects,  and   irregularities   in,   52,  91,   171,    193,   207, 

212.  217,  331,  409. 
marshal's  return,  evidence  thereon,  234. 
property,  on  title  to,  in  question,  53. 

property,  on  title  to,  in  question,  liability  of  surety  on,  85. 
replevin,  action  against  sureties  in,  on,  50,  53,  234. 
replevin,  injury  in  such  action  no  defense,  234. 
replevin,  plaintiffs,  211,  212,  216. 
replevin,  additional,  216. 
replevin,  defective,  217. 
replevin  by  defendant,  222. 

replevin  by  defendant,  sureties  must  justify  on  return  of  summons,  222. 
removal,  undertaking  on,  87. 
removal,  defective,  remedy  for,  after,  94. 
removal,  action  on,  53. 


Index.  619 

Undertaking,  removal,  tender  of,  on,  ceases  jurisdiction,  85,  90. 

removal,  insuflicient,  on,  91. 

removal  of  action,  justification  of  sureties,  93. 

removal,  tender  of,  92. 

stay,  execution  on  judgment,  408. 

surety,  when  title  to  real  property  comes  in  question,  liability  of,  in,  85. 

surety,  on  arrest,  must  justify  if  required  by  marshal,  3S8. 

suretj',  joint  and  several  liability  on,  52. 

surety,  joint  and  several,  liability  on  appeal,  410. 

surety,  adjournment  on  justification  on,  224. 

surety,  exception  to  and  justification  of  sureties  on,  51,  91,  171,   173,  193, 
207,  212,  217,  331,  409. 

sections  applicable  to,  51,  91,  171,  193,  207,  212,  217,  331,  409. 
Use  and  occupation,  complaint  for,  256. 
Usury,  accommodation  note,  47. 

requisites  of  pleading,  262. 

Vacancy,   justice    may    hold   court    in   district   other  than   to   which   he   was 
elected,  when  vacancy  exists,  et  cetera,  112. 

in  term  of  office  of  justice,  16. 
Value,  proof  of,  in  action  for  conversion,  45. 

of  chattel,  in  action  for  replevin,  62. 

of  chattel  or  special  property  to  be  fixed  by  judgment  in  replevin,  230,  231. 

special  interest  in  property,  62. 

of  property  to  be  stated  in  affidavit  in  replevin,  215. 
Variance  between  proof  and  bill  of  particulars,  244. 

between  pleading  and  proof,  amendment,  273. 

immaterial,  in  pleading,  275. 

material,  how  provided  for,  275. 
Vendor  and  vendee,  conditional,  238. 
Verdict.     (See  Trial.) 

altering,  321. 

application  is  one  of  right,  353. 

bias,  prejudice,  or  passion,  353. 

court  has  power  to  direct  or  set  aside,  71,  78,  346,  347. 

defects  cured  by,  347. 

direction  of,  by  judge,  when  error,  327. 

jury,  by  the,  requisites,  321. 

judgment  upon,  delay  in  rendering,  322. 

motion  to  set  aside,  71,  81. 

motion  to  set  aside,  may  be  waived,  333. 

motion  to  set  aside,  or  vacate  or  amend  judgment,  how  made,  et  cetera, 
352. 

new  trial  in  furtherance  of  justice,  353. 

plaintiff's  absence  cannot  be  taken  in,  321. 

replevin,  what  to  state,  230,  231,  322. 


620  Index. 

Verdict,  replevin,  for  part  of  several  chattels,  231. 

rendition  of,  within  what  time,  352. 

summary  proceedings,  may  be  directed  or  set  aside,  70,  71,  81. 

waiver  of,  when  party  waives  rendering  of,  322. 
Verification,  amended  pleadings  of,  245. 

answer,  unverified,  motion  to  dismiss  complaint,  246. 

by   association,  271.  , 

by  attorney,  271. 

by  corporation,  271. 

date  of,  271. 

defective,  remedy  for,  271. 

how  and  by  whom  to  be  made,  270,  271. 

knowledge,  271. 

people  of  the  State,  270. 

public  officer,  270. 

requirement  concerning  verified  pleading,  270. 
Vessel,  action  on  undertaking  to  enforce  lien  on,  53. 

attachment  of,  personal  service  of  process,  207. 
Void,  process,  erroneous,  irregular  or,  12. 

Wages  of  infant,  parent  claiming,  must  notify  employer,  effect  of  notifica- 
tion, 46, 

complaint  for,  master  and  servant,  254. 
Wage-earner.     (See  Employee;  Workingman.) 

action  by  employee,  369. 

amount  less  than  $50,  368,  369. 

costs,  in  action  by  workingman,  439. 

costs,  in  action  by  working-woman,  447. 

defendant  on  execution  against  person,  how  long  confined,  369,  370. 

no  other  execution  against  the  person,  369. 

execution  against  the  property  and  against  the  person,  368. 

no  property  of  defendant  exempt,  when,  368. 

judgment  in  favor  of,  368. 

short  Statute  of  Limitation,  368. 
Waiver  of  amount  in  excess  of  jurisdiction,  48,  85. 

of  answer  on  the  merits  is,  262. 

of  architect's  certificate,  256. 

of  irregularity,  214,  310. 

on  deposition  of  witness  taken  conditionally,  310. 

of  legal  capacity  to  sue,  267. 

of  misnomer,  when,  277. 

of  mistake  in  name  of  defendant,  273. 

of  right  of  removal  of  action,  92,  93. 

of  time,  essence  of  contract,  256. 
Wards,  boundaries  of,  in  the  districts  of  the  borough  of  The  Bronx,  17,  18. 

boundaries  of,  in  the  districts  of  the  borough  of  Manhattan,  18-26. 


Index.  621 

Wards,  boundaries  of,  in  the  districts  of  the  borough  of  Brooklyn,  26-37. 

boundaries  of,  in  the  districts  of  the  borough  of  Queens,  37,  38. 

boundaries  of,  in  the  districts  of  the  borough  of  Richmond,  38. 
Warehouse  hens,  68. 
Warehouseman,  68. 

interpleader,  284. 
Warrant  of  attachment.     (See  also  Attachment.) 

action  upon  undertaking  on  vacating,  200. 

amended,  may  be,  192. 

amount  must  be  specified  in,  192. 

for  contempt,  recital  in,  99. 

contents  of,  191. 

chattel,  in  action  to  foreclose  lien  upon,  237. 

executed,  how,  193. 

levy  upon  property  under,  how,  194. 

service  of,  where,  194. 

what  must  be  shown  to  procure,  184. 

witness  defaulting,  against,  292. 
Workingman.     (See  Wage-Earner.) 

lien,  68. 

artisans,  63. 
Working- woman.     (See  Wage-Earner.) 
Written  instrument,  no  jurisdiction  to  reform,  86. 
Wife.     (See  Husband;  Married  Woman.) 
Witness,  absence  of,  adjournment,  286,  288. 

adverse,  plaintiff  allowed  latitude  in  examining,  337. 

attendance  of,  288,  290. 

books,  inspection  of,  289. 

commission  to  take  testimony  of,  295-304. 

compelling  the  attendance  and  testimony  of,  294. 

competency  of,  302. 

corporation  books,  how  produced,  289. 

credibility  of,  on  trial,  325,  327,  337. 

cross-examination  of,  327. 

deceased  person,  when  not  excused  from  testifying  to  transactions  with, 
338. 

defaulting,  liable  for  damages  and  penalty  of  $50,  293. 

deposition,  to  take,  304-311. 

detention  of,  289. 

discharge  of,  289. 

excuse,  290,  292. 

fees  of,  291,  293,  307,  454,  463. 

fees  of,  attorney  not  allowed  as  a,  when,  455. 

fees  of,  commission  to  take  testimony  within  the  State,  subpoena  where, 
106. 

fees  of,  deposition  to  be  used  in  another  State,  107. 


622  Index. 

Witness,  fees  of,  disbursements  of,  455. 
fees  of,  expert  of,  454. 
fees  of,  party  of,  455. 
fees  of,  settlement  of  suit,  455. 
fees  of,  tabulated  statement  of,  463. 
habeas  corpus,  to  testify,  292. 
impeaching,  302. 

interested,  swearing  falsely,  325. 
justice  a,  proceedings  in  case  of,  14. 
knowledge,  303. 

materiality  of,  on  commission,  303. 
mileage,  292. 

mistake  in  name  of,  in  commission,  301. 
nonresident,  290,  292. 

nonresident,  exempt  from  service  of  summons,  133. 
notice  to  produce,  290. 
nonattendance  of,  excuse  for,  290,  292. 
nonattendance  of,  remedies,  294. 
number  of,  limiting,  337. 

oath  or  affirmation  to.  and  general  mode  of  swearing,  334. 
officer  of  domestic  corporation,  291. 
qualification  of,  338. 

privilege,  from  service  of  summons  and  arrest,  290,  292. 
prison,  confined  in,  306,  308. 
public  officer,  291. 
punishment  of,  294. 

refusal  of,  to  answer,  taking  deposition  conditionally,  309. 
refusal  to  attend,  be  sworn,  or  to  answer  material  questions  is  a  con- 
tempt, 104. 
refusal  to  produce  papers,  294. 

records  not  to  be  removed  by  virtue  of  subpoena,  291. 
subpoena  duces  tecum,  291. 
how  subpoena  served  upon,  291,  292. 
•warrant  of  attachment  against  defaulting,  292. 
warrant  of  attachment,  how  executed,  fees  thereupon,  293. 


INDEX  TO  APPENDIX  OF  FORMS. 


Adjournment,  undertaking  of  defendant  for,  when  under  arrest,  491. 

Affidavit  to  obtain,  of  trial,  510. 

Undertaking  on  long,  511. 
Affidavit  of  service  of  summons,  482. 

by  employee  against  employer  for  services,  male  or  female,  484. 

for  appointment  of  guardian  ad  litem  for  infant  under  fourteen,  485. 

for,  over  fourteen,  486. 

to  obtain  order  of  arrest,  487. 

for  warrant  of  attachment,  492. 

in  an  action  to  recover  chattel,  499. 

by  defendant  to  reclaim  chattel,  504. 

by  third  person  for  delivering  of  chattel  to  him,  505. 

to  obtain  adjournment  of  trial,  510. 

for  warrant  of  attachment  against  witness,  513. 

that  justice  is  a  material  witness  on  the  trial,  517. 

to  obtain  order  to  plead,  528. 

for  substituted  service,  534. 

of  service  of  order  thereon,  535. 

as  to  costs  and  disbursements,  536. 

by  employee  against  employer,  male  or  female,  484. 
Allowance,  by  justice  of  undertaking,  505. 
Answer,  of  title  to  real  property,  508. 

Undertaking  on,   508. 
Application,  to  obtain  order  of  arrest,  487. 

for  warrant  of  attachment,  492. 
Appeal,  notice  of,  528. 

Justice's  return  on,  530. 

Undertaking  on,  to  secure  stay  of  execution,  529. 
Arrest,  where  order  of  with  summons,  482. 

Application  and  affidavit  to  obtain  order  of,  487. 

Undertaking  to  obtain  order  of,  491. 

Order  of,  489. 

Undertaking  upon,  by   defendant,  491. 

Undertaking  of  defendant  on  adjournment,  when  under,  491. 
Attachment,  application  for  warrant  of,  492. 

Warrant  of,  494. 

Defendant's  undertaking  for  redelivery  of  attached  property,  495. 
[623] 


G24:        Index  to  Appendix  of  Forms. 

Attachment,  Inventory  of  property  attached,  496 

Bond  for  delivery  of  attached  property  to  third  person,  490. 

Marshal's  return  of  proceedings  on,  served  personally,  497. 

Order  vacating  warrant  of,  49S. 

Execution  against  property   taken  by,   499. 

Affidavit  for  Warrant  of,  against  witness,  513. 

against  defaulting  witness,  513. 

Order  on,  against  such,  514. 

Bond,  for  delivery  of  attached  property  to  third  person,  496. 
Indemnity,  525. 

Certificate  of  service  by  marshal,  514. 

of  satisfaction  of  judgment,  520. 
Chattel,  affidavit  in  action  to  recover,  499. 

Complaint  in  action  to  recover,  500. 

Plaintiff's  undertaking  in  action  to  recover,  501. 

Notice  by  defendant  to  reclaim,  503. 

Affidavit   by   defendant   to   reclaim,   504. 

Undertaking  by  defendant  to  reclaim,  504. 

Examination  of  sureties  thereon,  504. 

Affidavit  by  third  person  for  delivery  of,  to  him,  505. 

Marshal's  notice  to  plaintiff  of  third  person's   claim  to,  505. 

Plaintiff's   undertaking   to   indemnify   marshal   against   such  claim, 
506. 

Execution  on  judgment  awarding  the  recovery  of  a,  506. 

Judgment  in  action  to  foreclose  lien  on  a,  532. 
Commissions,  note  as  to,  511. 
Commitment,  of  witness,  513. 

Warrant  of,   516. 
Complaint,  in  action  to  recover  chattel,  500. 

petition  by   infant  over  fourteen  for  appointment  of  guardian  ad 
litem,  486. 

Order  thereon,  487. 

Petition  by  relative  or  friend  of  infant  defendant  under  fourteen, 
487. 

Undertaking  of,  on  adjournment  when  under  arrest,  491.     . 

Undertaking  for  delivery  of  attached  property,  495. 

Notice  by  excepting  to  plaintiff's  sureties  in  replevin,  505. 

Notice  by,  to  reclaim  chattel,  503. 

Affidavit  by,  to  reclaim  chattel,  504. 

Undertaking  by,  to  reclaim  chattel,  504. 
Confession  of  judgment.     See  Abbott's  Forms. 

Duces  Tecum,  subpoena,  512. 

Marshal's  return  on  subpoena,  512. 


Index  to  Appendix  of  Forms.  C25 

Employee  against  employer  for  services,  male  or  female,  affidavit  by, 

4S4 
Examination  of  sureties,  519. 
Execution,  against   property  taken   by   attachment.  499.  , 

on  judgment  awarding  recovery  of  chattel,  50G. 

to  marshal  to  collect  fine  of  defaulting  witness,  515. 

against  property,  522. 

same,   against  joint   debtors,   523. 

against  the  person,  524. 

in  favor  of  wage-earner,  524. 

against   property,   mechanic's  lien,   533. 

Undertaking  on  appeal  to  secure  stay  of,   529. 

Guardian  ad  litem,  consent  of,  for  appointment,  485. 

Guardian,  of,  for  infant  under  fourteen,  for    over  fourteen,  485. 

Order  for  appointment  of,  under  fourteen,  486. 

for,  over  fourteen,  486. 

consent  of,  4S5. 

Indemnity,  bond  of,  525. 

Infant,  petition  for  appointment  of  guardian  ad  litem  for,  under  four- 
teen, 485. 

for,  over  fourteen,  486. 

Petition  by  relative  or  friend  of,  under  fourteen,  487. 
Interpleader.     See  Abbott's  Forms. 
Inventory  of  property  attached,  496. 

Judgment,  transcript  of,  520. 

confession  of.     See  Abbott's  Forms. 

Certificate  of  satisfaction  of,  520. 

in  action  to  foreclose  lien  on  a  chattel,  532. 
Juror,  notice  to,  518. 

Oath  to,  on  the  trial,  330. 
Jury,  venire' by,  marshal  to  summon,  516. 

Justice's  Return  on  appeal,  530. 

Marshal,  certificate  of  service  of,  482. 

return  of  nonservice  cf  summons,  483. 

return  of  proceedings  on  warrant  of  attachment  served  personally, 

497. 
return  of,  in  proceedings  to  replevy,  503. 

notice  to  plaintiff  of  third  person's  claim  to  recover  chattel,  505. 
Plaintiff's  undertaking  to  indemnify,  against  claim  by  third  person 

in  action  to  recover  chattel,  506. 
return  on  subpoena,  512. 

Execution  to,  to  collect  fine  of  defaulting  witness,  515. 
Venire  to,   516 
40 


626  Index  to  Appendix  of  Forms. 

Marshal,  return  of  service  to  venire,  516. 

Oath  to,  330. 
Minute  of  conviction  on  attachment  of  defaulting  witness,  515. 
Motion,  notice  of,  to  set  aside  proceedings,  507. 

Notice,  of  motion  to  set  aside  proceedings,  507. 

of  motion  (with  or  without  stay  of  proceedings),  509. 
to  juror,  518. 
of  appeal,   528 

Oath,  to  juror  on  the  trial,  330 

to   marshal,   330. 

of  witness  on  the  trial.     Code  Civ.  Proc,  §  846. 
Order  on  petition  of  guardian  ad  litem  for  appointment  of,  for  infant 
under  fourteen,   486. 

for,  over  fourteen,  487. 

Application  and  affdavit  to  obtain,  of  arrest,  487. 

of  arrest,  489 

vacating  warrant  of,  498. 

for  substituted  service,  534. 

to  show  cause,  509. 

for  attachment  against  defaulting  witness,  514. 

on  affidavit  that  justice  material  witness  on  the  trial,  518 

Removing  action,  527. 

to  plead,  528. 

Petition  for  leave  to  prosecute  as  a  poor  person,  483. 

for  appointment  of  guardian  ad  litem,  for   infant  under  fourteen. 
485. 

for,  over  fourteen,  486. 

by  relative  or  friend  for  infant  defendant  under  fourteen,  487 
Plaintiff,  Undertaking  in  action  to   recover  chattel,  501. 

notice  by  defendant  excepting  to  sureties  in  replevin,  503. 

Marshal's  notice  to,  of  third  person's  claim  in  action  to  recover  a 
chattel,  505. 

Undertaking  to  indemnify  marshal  against  such  claim,  506. 
Poor  Person,  or  Pauper,   summons,  482. 

Petition  for  leave  to  prosecute  as  a,  483. 

Remittitur.     See  Abbott's   Forms. 

Replevin,  marshal's  return  in  proceedings  to,  503. 

Notice  by  defendant  excepting  to  sureties  in,  503. 
Return  of  justice  on  appeal.  530. 

of  proceeding  on,  by  marshal  on  warrant  of  attachment  served  per- 
sonally, 497. 

of  marshal  in   proceedings   to   replevy,   503. 

of  marshal  on  subpoena,  512 

of  marshal  to  venire,  516 


Index  to  Appendix  of  Forms.        627 

Satisfaction,  certificate  of,  of  judgment,  520. 
Service.     Marshal's  certificate  of  the  summons,  514. 

return  of  marshal  of  nonservice  of  summons,  483. 

Affidavit  of  service  of  order  for  substituted  service,  535. 
Subpoena  to  testify,  511. 

duces  tecum,  512. 

Marshal's  return  on,  512. 
Substituted  service,  534,  535,  536. 
Summons,   127,  481. 

Alias,  481. 

where  order  of  arrest,  with,  482. 

Pauper,  482. 
Sureties,  on  undertaking,  519. 

notice  by  defendant  to  plaintiffs   in  replevin,  503. 

on  undertaking,  examination,  519. 

Title,  answer  of,  to  real  property,  508. 

Undertaking  thereon,  508. 
Transcript,  of  judgment,  520. 

Undertaking,  to  obtain  order  of  arrest,  488. 
upon  arrest  by  defendant,  488. 

of  defendant  on  adjournment,  when  under  arrest,  491. 
for  warrant  of  attachment,  493 

Defendant's,  for  redelivery  of  attached  property,  495. 
For  delivery  of  attached  property  to  third  person,  496. 
Plaintiff's,  in  action  to  recover  chattel,  501. 
by  defendant  to  reclaim  chattel,  504. 
allowance  by  justice  of,  505. 
Plaintiff's,  to  indemnify  marshal  against  claim  to  recover  a  chattel, 

506. 
on  answer  of  title  to  real  property,  508. 
on  long  adjournment,  511 
to  indemnify  against  lost  bill  or  note,  518. 
on  removing  action,  526. 
on  appeal  to  Secure  Stay  of  Execution,  529. 
on  appeal  opening  default,  536. 

Venire  to  marshal  to  summon  jury,  516 

Warrant,  of  attachment,  494. 
order  vacating,  498. 

Execution  against  property  taken  by  attachment,  499. 
Affidavit  for,  of  attachment  against  witness,  513. 
of  commitment  against  witness,  516. 
of  commitment,  521. 
in  action  to  foreclose  lien  on  a  chattel,  532. 


628        Ixdex  to  Appendix  of  Forms. 

Witness,  subpoena  for,  486. 

Subpoena  duces  tecum,  512. 

Affidavit  for  warrant  of  attachment  against,  513. 

Attachment  against  defaulting,  513. 

Order  for  attachment  against  defaulting.  514. 

Minute  of  conyiction  of  such,  by  justice,  515. 

Execution  to  marshal  to  collect  fine  of  such,  515. 

Commitment  of,  513. 

Oath  of,  on  the  trial.     Code  Civ.  Proc ,  §  846. 

[Whole  Nuaibeh  of  Pages,  662.} 


SUPPLEMENT  TO  THE  FIFTH  EDITION 

OF 

LANGBEIN'S 

LAW  AND  PEACTICE 

OP  THE 

MUNICIPAL  COURT 

OF  THE 

CITY  OF  NEW  YOEK 


CONTAINING 

THE  AMENDMENTS  TO   "THE  MUNICIPAL    COURT    ACT    OF 
THE  CITY  OF  NEW  YORK"  (LAWS  1902,  CHAP.  580),  "THE 
GREATER  NEW  YORK  CHARTER"  (LAWS  1901,   CHAP. 
466)  RELATIVE  TO  SAID  COURT,  CHANGES  IN  THE 
JUSTICES,  CLERKS,  COURT  OFFICIALS  AND  MAR- 
SHALS, THE  LATEST  RULES  OF  PRACTICE, 
AND  RELATIVE  TO  CLERKS  AND  ATTEND- 
ANTS,  AND    DECISIONS  AFFECTING 
THIS  COURT  SINCE  AUGUST,  1902, 

BY 

LANGBEO    BEOTHEES 

COUNSELLORS-AT-LAW 

George  F.  Langbein"         J.  0.  Julius  Langbein- 


NEW  YORK 

BAKER,  VOORHIS  &  COMPANY 
1905 


Copyright,  1905, 
By  GEORGE  F.  LANGBEIN  and  J.  C.  JULIUS  LANGBEIN 


J.    B.    LYON   COMPANY 

PRINTERS    AND     BINDERS 

ALBANY,    N.    Y. 


CHARTER  AND   MUNICIPAL  COURT 
AMENDMENTS    SINCE   AUGUST,    1902 


AMENDMENTS  to  "The  Greater  New  York  Charter"  (Laws   1901, 
Chap.  466)  affecting  the  Municipal  Court. 
LAWS  1903,  Chapter  645. 
LAWS  1905,  Chapters  730,  758. 

AMENDMENTS  to  the  Municipal  Court  Act  (Laws  1902,  Chap.  580). 
LAWS  1903,  Chapters  144,   156,  282,  431. 
LAWS  1904,  Chapters  93,  264,  598,  625,  682,  735. 
LAWS  1905,  Chapters  73,  125,  228,  513,  622, 


ADDENDA  NOTE. 


The  statute  as  to  sale  of  merchandise  in  bulk  (Laws  1902, 
chap.  528)  has  been  declared  unconstitutional  by  the  Court  of 
Appeals  in  Wright  as  Trustee  v.  Hart.  (See  N.  Y.  Law  Jour- 
nal, October  16,  1905.)  The  decisions  under  this  statute  cited 
on  pages  47,  48,  and  76  are  therefore  no  longer  the  law. 


THE  MUNICIPAL  COURT 


OF  THE 


CITY   OF    NEW    YORK. 


NAMES  OF  THE  JUSTICES,  CLERKS,  COURT  OFFICIALS,  AND 
MARSHALS,  WITH  THEIR  RESIDENCES,  DAYS  AND  PLACES 
OF  HOLDING  COURT,  AND  TELEPHONE  NUMBER. 


BOROUGH  OF  THE  BRONX. 

FIRST   JUDICIAL   DISTRICT. 

Court  held  at  Town  Hall,  Main  Street,  Westchester. 
Trial  days,  Tuesday  and  Friday. 

Justice,  WILLIAM  W.   PENFIELD,   Wakefield. 
Clerk,  Thomas  F.  Delehanty,  White  Plains  Ave.,  Williamsbridge. 
Assistant  Clerk,  William  D.  Miller,  White  Plains  Ave.,  Wakefield. 
Stenographer,  Lucius  W.  How,  Bronxwood  Park,  Williamsbridge. 
Attendants,  Stephen  Collins,   City  Island,  New  York  city. 
John  H.  Coman,  Poplar  St.,  Westchester. 
Timothy  Sullivan,  East  Chester  Road,  Westchester. 
Fireman,  Patrick  Clark,  No.  833  Washington  Ave.,  Bronx. 
Janitor,  Daniel  Schwegler,  No.  1254  Franklin  Ave.,  Bronx. 
Marshal,  Mathew  F.  Mulvihill,  No.  1991  Lexington  Ave.,  Manhattan. 

No  telephone. 


SECOND  JUDICIAL  DISTRICT. 

Court  held  at  southwest  corner  of  158th  St.  and  3d  Ave. 

Trial  days,  every  day  except  Saturday,  Sunday,  and  legal  holidays. 

Justice,  JOHN  M.  TIERNEY,  Southern  Boulevard,  near  Valentine  Ave. 
Clerk,  Thomas  A.  Maher,  No.  1346  Fulton  Ave. 
Assistant  Clerk,  John  Monaghan,   166th  St.  and  Sherman  Ave. 
Stenographer,  Wm.  M.  Browne,  Hunts  Point. 


2  Names  of  Justices,  Clerks,  Etc. 

Interpreter,  Robert  Yollbracht,  No.  674  East  144th  St. 
Attendants,  Louis  F.  Scofield,  No.  39  Boston  Ave. 
Peter  Koelble,  No.  8S3  Forest  Ave. 
Frederick  Johnson,  No.  670  East  144th  St. 
Marshals,  Thos.  McLaughlin,  No.  711  East  158th  St. 
David  W.  Erskine,  No.  706  East  158th  St. 
George  Donnelly,  158th  St.  and  3d  Ave. 
Telephone,   1059  Melrose. 


BOROUGH    OF   MANHATTAN. 

FIRST   JUDICIAL   DISTRICT. 

Court  held  at  128  Prince  St. 

Trial  days,  Tuesday,  Wednesday,  Thursday,  and  Friday. 

Justice,  WAUHOPE  LYNN,  No.  19  King  St. 
Clerk,  Thomas  O'Connell,  No.  437  Canal  St. 
Assistant  Clerk,  Dominick  F.  Mullaney,  No.  71  Charlton  St. 
Stenographer,  Edward  C.  Manners,  No.  968  St.  Nicholas  Ave. 
Interpreter,  Edward  Herbert,  No.  282  Broome  St. 
Attendants,  Charles  Kerner,  No.  74  Beach  St. 

Michael  Brennan,  No.  584  Broome  St. 

John  J.  McGrath,  No.  20  Greenwich  St. 
Janitor,  Patrick  J.  Kane,  No.  128  Prince  St. 
Marshal,  Edward  J.  Healey,  No.  42  Barrow  St. 
Telephone,  1430  Spring. 


SECOND  JUDICIAL  DISTRICT. 

Court  held  at  59  Madison  St. 

Trial  days,  every  day  except  Sunday  and  legal  holidays. 

Justice,  JOHN  HOYER,  appointed  by  the  Mayor,  No.  26  Oliver  St. 
Clerk,  Francis  Mangin,  No.  285  Mott  Str 
Assistant  Clerk,  James  P.  Divver,  No.  88  Madison  St. 
Stenographer f  Charles  J.  Doran,  No.  340  East  18th  St. 
Attendants,  Hugh  Taggert,  No.  222  East  5th  St. 

James  McCullough,  No.  73  Centre  St. 
Charles  D.  Perry,  No.  289  Grand  St. 
Janitor,  Joseph  Ramsey,  No.  611  9th  Ave. 

No  telephone. 


!Names  of  Justices,  Clerks,  Etc. 

THIRD   JUDICIAL  DISTRICT. 
Court  held  at   125  6th  Ave. 
Trial  days,  daily  except  Sundays  and  legal  holidays. 

Justice,  WILLIAM  F.  MOORE,  Xo.   Ill   West  11th  St. 
Clerk,  Daniel  Williams,  No.  66  West  10th  St. 
Assistant  Clerk,  Thomas  E.  Gorman,  No.  103  Bank  St. 
Stenographer,  Valencouet  S.  Lillie,  No.  30  East  10th  St. 
Attendants,  Daniel  B.  Murphy,  No.  448  West  14th  St. 

Michael  Bergin,  No.  56  Bank  St. 

John  J.  Gallagher,  No.  32  Leroy  St. 
Janitor,  Daniel  Mooney,  No.  15  St.  Luke's  Place. 
Marshal,  J.  T.  Pangburn,  Court  House. 

Telephone,  2396  Chelsea. 


FOURTH  JUDICIAL  DISTRICT. 

Court  held  at  northeast  corner  of  2d  Ave.  and  1st  St. 

Trial  days,  Monday,  Tuesday,  Wednesday,  Thursday,  and   Friday. 

Justice,  GEORGE  F.  ROESCH,   No.   109   East   10th   St. 
Clerk,  Andrew  Lang,  No.  159  East  3d  St. 
Assistant  Clerk,  William  Dopf,  No.  125  2d  Ave. 
Stenographer,  Caleb- H.  Redfern,  No.  257  West  54th  St. 
Attendants,  Michael  G.  Murray,  No.  165  East  54th  St. 

James  J.  Skiffington,  No.  453  East  10th  St. 
Andrew  J.  Hughes,  Xo.  10  St.  Mark's  Place. 
Janitor,  John  Rooney,  No.  30  1st  St. 
Interpreter,  Isidore  Loewy,  No.  157  East  3d  St. 
Marshals,  Jacob  Subin,  No.  29  1st  St. 
I.  Van  Lee,  No.  30  1st  St. 
Joseph  Ethor,  No.  34  1st  St. 
A.  C.  Lorey,  No.  34  1st  St. 

No  telephone. 


FIFTH  JUDICIAL  DISTRICT. 

Court  held  at  154  Clinton  St. 

Trial  days,  every  day  except  Saturday,  Sunday,  and  legal  holidays. 

Justice,  BENJAMIN  HOFFMAN,  No.  271   7th   St. 
Clerk,  Thomas  Fitzpatrick,  No.  258  Henry  St. 
Assistant  Clerk,  James  H.  Sheils,  No.  283  East  Broadway. 


4  Names  of  Justices,  Clerks,  Etc. 

Stenographer,  Louis  Posneb,  No.  17  Rivington  St. 
Interpreter,  Jacob  Katz,  No.  160  East  72d  St. 
Attendants,  Charles  Neuman,  No.  64  Avenue  C. 

James  McAlabney,  No.  438  East  116th  St. 

Patrick  Reilly,  No.  168  Delaney  Place,  Bronx. 
Janitor,  Joseph  Rose,  No.  154  Clinton  St. 

No  telephone. 


SIXTH  JUDICIAL  DISTRICT. 

Court  held  at  407  2d  Ave. 

Trial  days,  every  day  except  Sunday  and  legal  holidays. 

Justice,  DANIEL  F.  MARTIN,  No.  245  East  33d  St. 
Clerk,  Abbam  Bebnabd,  No.  956  Broadway. 
Assistant  Clerk,  James  Foley,  No.  314  East  19th  St. 
Stenographer,  Isaac  E.  Gabvey,  No.  689  Greenwich  St. 
Attendants,  Lawbence  Collins,  No.  233  East  30th  St. 

Albebt  Goettman,  No.  304  East  18th  St. 

Tebence  S.  Rielly,  No.  244  East  37th  St. 
Janitor,  John  S.  Ryan,  No.  333  2d  Ave. 
Interpreter,  Henby  Alsheimee,  417  East  15th  St. 

No  telephone. 


SEVENTH  JUDICIAL  DISTRICT. 

Court  held  at  151  East  57th  St. 

Trial  days,  every  day  except  Saturday,  Sunday,  and  legal  holidays 

Justice,  HERMAN  JOSEPH,  No.   121  East  64th  St. 
Clerk,  Edwaed  A.  McQuade,  No.  1328  Lexington  Ave. 
Assistant  Clerk,  Thomas  M.  Campbell,  No.  1183  3d  Ave. 
Stenographer,  Stewaet  Liddell,  No.  151  East  40th  St. 
Attendants,  Edwaed  T.  Foean,  No.  214  East  90th  St. 

Patbick  Cunningham,  No.  8  East  85th  St. 
William  Fabley,  No.  1357  2d  Ave. 
Janitor,  Ike  Adamshitz,  No.  151  East  57th  St. 

No  telephone. 


Names  of  Justices,  Clerks,  Etc.  5 

EIGHTH  JUDICIAL  DISTRICT. 

Court  held  at  northwest  corner  23d  St.  and  8th  Ave. 

Trial  days,  daily  except  Saturday,  Sunday,  and  legal  holidays. 

Justice,  JAMES  W.  McLAUGHLIN,  No.  234  West  34th  St. 
Clerk,  Henry  Mebzbach,  No.  259  West  34th  St. 
Assistant  Clerk,  Peter  J.  Garvey,  No.  34G  West  22d  St. 
Stenographer,  Harold  Eyre,  No.  155  West  22d  St. 
Interpreter,  Elias  Kaplan,  No.  212  Clinton  St. 
Attendants,  Charles  J.  Geiger,  No.  432  East  89th  St. 
Daniel  Walsh,  No.  449  East  86th  St. 
John  J.  Sheehan,  No.  361  West  15th  St. 
Janitor,  Edgar  W.  Chichester,  No.  2270  7th  Ave. 
Marshals,  James  W.  Slater,  No.  264  8th  Ave. 

James  W.  Ketcham,  No.  264  8th  Ave. 
No  telephone. 


NINTH  JUDICIAL  DISTRICT. 

Court  held  at  170  East  121st  St. 

Trial  days,  every  day  except  Saturday,  Sunday,  and  legal  holidays. 

Justice,  JOSEPH  P.  FALLON,  No.  103  East  116th  St. 
Clerk,  William  J.  Kennedy,  No.  64  East  130th  St. 
Assistant  Clerk,  Patrick  J.  Ryan,  No.  172  East  94th  St. 
Stenographer,  George  Zieger,  No.  51  West  128th  St. 
Attendants,  Charles  L.  Lambert,  No.  110  West  129th  St. 
John  Golden,  No.  514  East  114th  St. 
Isaac  Silverblatt,  No.  207  East  124th  St. 
Interpreter,  Eugene  Dumas,  No.  152  West  100th  St. 

No  telephone. 


TENTH  JUDICIAL  DISTRICT. 

Court  held  at  312  West  54th  St. 

Trial  days,  every  day  except  Saturdays  and  legal  holidays. 

Justice,  THOMAS  E.  MURRAY,  No.  305  West  46th  St. 
Clerk,  Michael  Skelly,  No.  442  West  51st  St. 
Assistant  Clerk,  George  Sexton,  No.  1961  Broadway. 
Stenographer,  William  C.  Booth,  No.  59  West  76th  St. 


6  Names  of  Justices,  Clerks,  Etc. 

Attendants,  Cornelius  Foley,  No.  342  West  47th  St. 

Thomas  P.  Campbell,  No.  408  West  40th  St. 

John  F.  Uleich,  No.  22  West  60th  St. 
Interpreter,  Walteb  Koltengen,  No.  75  Waverly  Place. 

No  telephone. 


ELEVENTH  JUDICIAL  DISTRICT. 

Court  held  at  70  Manhattan  St.,  New  York  city. 

Trial  days,  Monday,  Tuesday,  Wednesday,  Thursday,  and  Friday. 

Justice,  FRANCIS  J.  WORCESTER,  No.  462  West  144th  St. 
Clerk,  Heman  B.  Wilson,  No.  661  West  183d  St. 
Assistant  Clerk,  Robert  Andrews,  No.  2139  7th  Ave. 
Stenographer,  Harry  W.  Wood,  No.  770  St.  Nicholas  Ave. 
Interpreter,  Valentine  J.  Hahn,  No.  458  West  131st  St. 
Attendants,  Thomas  H.  McCarrick,  No.  358  West  116th  St. 
Frank  McGrath,  No.  498  West  133d  St. 
Charles  J.  Callaghan,  No.  185  Audubon  Ave. 
Marshals,  Frank  C.  Merklee,  Court  House. 
Frank  C.  Langley,  Court  House. 

Telephone,  299  Morningside. 


TWELFTH  JUDICIAL  DISTRICT. 

Court  held  at  2630  Broadway,  near  100th  St. 
Trial  days,  Monday,  Tuesday,  Wednesday,  and  Friday. 
Wednesday  —  Jury   Day. 


Justice,  ALFRED  P.  W.  SEAMAN,  Court  House. 
Clerk,  James  V.  Gilloon,  No.  160  West  106th  St. 
Assistant  Clerk,  John  H.  Servis,  No.  100  Convent  Ave. 
Stenographer,  James  E.  Lynch,  No.  41  Bethune  St. 
Interpreter,  Max  Rechnitzer,  No.  993  Ogden  Ave. 
Attendants,  Joseph  H.  Boylan,  No.  326  West  23d  St. 
Otto  H.  Keimling,  No.  344  West  47th  St. 
No  telephone. 


Names  of  Justices,  Clerks,  Etc. 

THIRTEENTH  JUDICIAL  DISTRICT. 
Court  held  at  200  East  Broadway. 
Trial  days,  Monday,  Tuesday,  Wednesday,  Thursday,  and  Friday. 

Justice,    LEON    SANDERS,    No.    11    Attorney   St. 
Clerk,  James  J.  Devlin,  No.  2  Mangin  St. 
Assistant  Clerk,  Michael  H.  Looney,  No.  203  Monroe  St. 
Stenographer,  Addison  Kavanagh,  No.  278  Henry  St. 
Attendants,  Hebman  Fried,  No.   118  Avenue  C. 

Edward  H.  Dinan,  No.  291  Madison  St. 
Thomas  B.  Frost,  No.  944  8th  Ave. 
Janitor,  William  Wagner,  No.  50  Broome  St. 
Interpreter,  Myron  S.  Yochelson,  No.  246  Henry  St. 
Telephone,   743   Orchard. 


BOROUGH  OF  BROOKLYN. 

FIRST  JUDICIAL  DISTRICT. 
Court    held    at   northwest    corner    of    State    and    Court    Sts., 

Brooklyn. 
Trial  days,  Monday,  Tuesday,  Wednesday,  Thursday,  Friday. 

Justice,  JOHN  J.  WALSH,   No.   289   Bridge  St.,   Brooklyn. 
Clerk,  Edward  Moran,  No.  242  Clinton  St.,  Brooklyn. 
Assistant  Clerk,  James  A.  Dunne,  No.  56  First  Place,  Brooklyn. 
Stenographer,  Dudley  J.  Fagan,  No.  1461  Dean  St.,  Brooklyn. 
Attendants,  Matthew  J.  Dowd,   No.   329   Bradford   St.,   Brooklyn. 
Charles  Koch,  No.  459  Pulaski  St.,  Brooklyn. 
John  J.  McManus,  No.  425  Grand  St.,  Brooklyn. 
Interpreter,  Joseph  Flash,  No.  378  Hancock  St.,  Brooklyn. 
Janitor,  James  Mahn,  No.  175  State  St.,  Brooklyn. 
Marshals,  John  H.  Reardon,  No.  108  Court  St.,  Brooklyn. 
John  Irvin,  No.  196  State  St.,  Brooklyn. 
Eugene  McCarthy,  No.  185  State  St.,  Brooklyn. 
Arthur  Stuber,  No.  82  Court  St.,  Brooklyn. 
No  telephone. 


SECOND  JUDICIAL  DISTRICT. 

Court  held  at  495  Gates  Ave. 

Trial  days,  every  day  except  Saturday,  Sunday,  and  legal  holidays. 

Justice,  GERARD  B.  VAN  WART,  No.  340  Putnam  Ave. 
Clerk,  William  H.  Allen,  No.  255  Vernon  Ave. 
Assistant   Clerk,  Edward  L.  Stryker,  Court  House. 


8  Names  of  Justices,  Clerks,  Etc. 

Stenographer,  Ciiakles  J.  Doyle,  No.  75  Vanderbilt  Ave. 
Attendants,  Samuel  A.  Ackerman,  No.  510  Monroe  St. 

J.  Nelson  Magee,  No.  2038  59th  St. 
Janitor,  John  S.  Matson,  No.  1166  Gates  Ave. 
Marshal,  John  Murray,  No.  501  Gates  Ave. 

No  telephone. 


THIRD   JUDICIAL  DISTRICT. 

Court  held  at  6  Lee  Ave. 

Trial  days,  every  day  except  Saturday,  Sunday,  and  legal  holidays. 

Justice,  WILLIAM  J.  LYNCH,  No.  247  Leonard  St. 
Clerk,  John  W.  Cabpenter,  No.  199  Kent  St. 
Assistant  Clerk,  Abthub  J.  Higgins,  No.  43  Marey  Ave. 
Stenographer,  John  W.  Richabds,  No.  15  Halsey  St. 
Interpreter,  Emil  Klebaub,  No.  829  Manhattan  Ave. 
Attendants,  Edward  S.  Wilson,  No.  20  Putnam  Ave. 
Walter  P.  Casey,  No.  97  Russell  St. 
Patrick  Courtney,  No.  1731  Fulton  St. 
No  telephone. 


FOURTH  JUDICLAL   DISTRICT. 

Court  held  at  14  Howard  Ave. 

Trial  days,  every  day  except  Saturday,  Sunday,  and  legal  holidays. 

Justice,   THOMAS   H.   WILLIAMS,   No.   555   Decatur   St. 
Clerk,  Gustave  J.  Wiederiiold,  No.  676  Madison  St. 
Assistant  Clerk,  Richard  M.  Bennett,  No.  869  Jefferson  Ave. 
Stenographer,  John  J.  Reilly,  No.   139  Miller  Ave. 
Interpreter,  Hyman  Rayfiel,  No.  1701  Pitkin  Ave. 
Attendants,  William  McKee,  No.  454  Lorimer  St. 
Robert  Hill,  No.  935  Jefferson  Ave. 
Louis  Ulm,  No.  893  Hancock  St. 
Janitor,  Peter  Amman. 

Marshals,  Albert  H.  Blenderman,  No.  907  Jefferson  Ave. 
David  Goldberg,  corner  Pitkin  and  Stone  Aves. 
Charles  Hart,  corner  Melrose  St.  and  Broadway. 
No  telephone. 


Names  of  Justices,  Clerks,  Etc. 

FIFTH  JUDICIAL  DISTRICT. 

Court  held  at  northwest  corner  53d  St.  and  3d  Ave. 
Trial  days,  Mondays,  Tuesdays,  and  Thursdays. 

Justice,  CORNELIUS  FURGUESON,  Bath  and  22d  Ave. 
Clerk,  Jeremiah  J.  O'Leary,  No.  445  58th  St. 
Assistant  Clerk,  Eugene  A.  Curran,  No.  184  Clarkson  St. 
Stenographer,  Joseph  N.  B.  Rawle,  No.  552  15th  St. 
Attendants,  John  F.  Dwyer,  Kimball  Road. 

Peter  C.  Moore,  No.  1917  Benson  Ave. 
Cornelius  Snedeker,  Bay  43d  St.  and  Cropsey  Ave. 
Marshals,  Michael  J.  Duffy. 
Alonzo  F.  Glover. 

Telephone,  407  Bay  Ridge. 


BOROUGH  OF  QUEENS. 

FIRST    JUDICIAL   DISTRICT. 

Court  held  at  46  Jackson  Ave.,  Long  Island  City. 
Trial  days,  Monday,  Wednesday,  and  Friday. 

Justice,  THOMAS  C.  KADIEN,  No.  147  12th  St. 
Clerk,  Thomas  F.  Kennedy,  No.  535  2d  Ave. 
Assistant  Clerk,  Eugene  Dennen,  No.  149  12th  St. 
Stenographer,  JonN  J.  Sullivan,  No.  60  Hoyt  Ave. 
Attendants,  Henry  A.  Smith,  No.  396  Ditmar  Ave. 

Thomas  White,  No.   120  Broadway. 
Janitor,  James  O'Rourke,  Whitestone,  L.  I. 
Marshal,  Conrad  Diestel,  No.  16  Pierson  St. 

No  telephone. 


SECOND  JUDICIAL  DISTRICT. 

Court  held  at  Court  Room,  corner  Broadway  and  Court  St.,  Elmhurst. 
Trial  days,  Tuesdays  and  Thursdays. 

Justice,  WILLIAM  RASQUIN,  Jr.,  No.  307  Lincoln  St.,  Flushing. 
Clerk,  Henry  Walter,  Jr.,  No.  21  Lutter  Ave.,  Middle  Village. 
Stenographer,  James  B.  Snedeker,  Lamont  Ave.,  Elmhurst. 
Attendants,  Frederick  W.  Billing,  Maiden  Lane,  Maspeth. 

Philip  Peters,  Columbia  Ave.,  Maspeth. 
Janitor,  William  Rigney,  No.  748  9th  Ave.,  Long  Island  City. 
Marshals,  August  C.  Brust  and  Frank  Ryan,  Court  House. 
Telephone,  87  Newtown. 


10  Names  of  Justices,  Clerks,  Etc. 

THIRD   JUDICIAL   DISTRICT. 

Court  held  at  Town  Hall,  Jamaica. 

Trial  days,  Monday,  Wednesday,  and  Friday. 

Justice,  JAMES  F.  MCLAUGHLIN,  Jamaica. 
Clerk,  George  W.  Damon,  Jamaica. 
Stenographer,  John  L.  Gwydib,  Jamaica. 
Attendants,  Thomas  Fox,  Jamaica. 

Joseph  Kestler,  Woodhaven. 
Marshals,  William  N.  George,  Richmond  Hill. 
Thomas  J.  Hobby,  Far  Rockaway. 

Telephone,  189  Jamaica. 


BOROUGH   OF   RICHMOND. 

FIRST  JUDICIAL  DISTRICT. 

Court  held  at  Village  Hall,  Lafayette  Ave.,  New  Brighton,  Staten  Island. 
Trial  days,  every  day  except  Sundays  and  holidays. 

Justice,  THOMAS  C.  BROWN. 
Clerk,  Anning  S.  Prall. 
Assistant  Clerk,  Thomas  E.  Cremins. 
Stenographer,  James  Drury. 
Attendants,  Edward  Finnerty. 

Frank  Langford. 
Janitor,  Patrick  J.  Maloy. 
Marshal,  William  De  Wolf. 

Telephone,  503  Tompkinsville. 


SECOND  JUDICIAL  DISTRICT. 

Court  held  at  Village  Hall,  Stapleton,  Staten  Island. 
Trial  days,  every  day  except  Sundays  and  holidays. 

Justice,  GEORGE  W.  STAKE,  No.  150  St.  Paul's  Ave.,  Stapleton. 
Clerk,  Peter  Tiernan,  No.  36  Hannah  St.,  Tompkinsville. 
Assistant  Clerk,  Wm.  J.  Browne,  Bay  St.,  Stapleton. 
Stenographer,  John  G.  Farrell,  Cary  Ave.,  West  New  Brighton. 
Attendants,  Charles  Warnecke,  No.  20  Prospect  St.,  Stapleton. 

Fred'k  H.  Ferger,  No.  38  Dongan  St.,  West  New  Brighton. 
Marshal,  Edward  Peterson,  Fulton  St.,  Stapleton. 
Telephone,  313   Tompkinsville. 


THE 

GREATER  NEW  YORK  CHARTER 

ENACTED  IN  1897  AS  AMENDED  BY 

Laws    1903,    1904,    and    1905,    with    Notes    of    the 
Decisions  by  the  Courts  Affecting'  the  Same. 


Charter,  §  1352,  Justices. 

This  section,  containing  four  subdivisions,  was  amended  by  Latvs 
1905,  chap.  758,  by  adding  at  the  end  of  subdivision  4  as  follows: 

At  the  general  election  to  be  held  in  the  year  nineteen 
hundred  and  five,  two  additional  justices  shall  be 
elected,  one  in  the  sixth  district  and  one  in  the  seventh 
district  of  the  borough  of  Brooklyn.  Their  terms  shall 
commence  on  the  first  day  of  January,  nineteen  hun- 
dred and  six. 

Notes  to  Charter  section   1353* 

Qualifications,  etc.,  of  justices;  must  be  resident  and  elector  of  district. 
—  Under  section  1353  of  the  amended  Greater  New  York  charter  (Laws 
of  1901,  chap.  466),  which  provides  that  a  justice  of  the  Municipal 
Court  of  the  city  of  New  York  shall  be  "  a  resident  and  elector  "  of 
the  district  for  which  he  shall  be  elected  or  appointed,  and  under  the 
provision  of  the  Public  Officers  Law  (Laws  of  1892,  chap.  681),  which 
provides  that  every  office  shall  become  "  vacant "  upon  the  incumbent's 
ceasing  to  be  an  "  inhabitant "  of  the  political  division  of  which  he  is 
required  to  be  a  "  resident  "  when  elected  or  appointed,  the  action  of 
a  justice  of  the  Municipal  Court  of  the  city  of  New  York  in  the  bor- 
ough of  Manhattan,  second  district,  in  removing  from  said  district 
after  his  election  and  becoming  an  inhabitant  of  White  Plains,  West- 
chester county,  N.  Y.,  furnishes  sufficient  ground  for  the  removal  of 
said  justice  by  the  Appellate  Division  in  proceedings  instituted  under 
section  1383  of  the  Greater  New  York  charter,  even  though  the  justice 

[11] 


12  BOKOTTGH    OF    MANHATTAN.       ChAK.,  §  1360 

in  question,  when  he  removed  to  White  Plains,  did  not  intend  to  give 
up  his  residence  in  the  district  for  which  he  had  been  elected  or  to 
forfeit  his  office. 

The  term  "  inhabitant,"  as  used  in  the  provision  of  the  Public  Officers 
Law,  before  mentioned,  has  reference  to  the  officer's  abode  or  domicile 
as  distinguished  from  his  legal  residence.  Qu<sre,  whether,  under  such 
circumstances,  the  justice  in  question  could  be  removed  from  his  office 
in  an  action  of  quo  warranto.    Matter  of  Bolte,  97  App.  Div.  551. 

Salary. 

CHARTER,  §  1355.  The  salary  of  each  of  said 
justices,  except  those  appointed  or  elected  from  the 
boroughs  of  Queens  and  Richmond,  shall  be  six  thou- 
sand dollars  a  year,  to  be  paid  in  equal  monthly  instal- 
ments by  the  proper  officers  of  said  city,  and  the  salary 
of  each  of  said  justices  appointed  or  elected  for  the 
boroughs  of  Queens  and  Richmond  shall  be  five  thou- 
sand dollars  a  year,  to  be  paid  in  the  same  manner, 
provided,  however,  that  whenever  a  justice  elected  or 
appointed  for  the  borough  of  Queens  or  the  borough  of 
Richmond  shall  hold  court  in  either  of  the  boroughs  of 
Manhattan,  Brooklyn  or  the  Bronx,  pursuant  to  desig- 
nation made  by  the  president  of  the  board  of  justices 
of  said  court  as  provided  by  law,  such  justice  shall  re- 
ceive in  addition  to  such  salary  the  sum  of  ten  dollars 
for  each  day  on  which  he  shall  so  hold  court,  to  be  paid 
on  the  certificate  of  such  president.  (As  amended  by 
Laws  1905,  chap.  622;  became  a  law  May  26,  1905.) 

Borough  of  Manhattan. 

CHARTER,  §  1360.  In  the  borough  of  Manhattan 
there  shall  be  thirteen  districts,  as  follows : 

1.  The  first  district  embraces  the  third,  fifth  and 
eighth  wards  of  said  borough  of  Manhattan,  and  all 


Char.,  §  13G0.     Borough  of  Manhattan.  13 

that  part  of  the  first  ward  lying  west  of  Broadway  and 
Whitehall  street,  including  Nuttin  or  Governor's 
island,  Bedloe's  island,  Bucking  or  Ellis  island  and  the 
Oyster  islands. 

2.  The  second  embraces  the  second,  fourth,  sixth  and 
fourteenth  wards,  and  all  that  portion  of  the  first  ward 
lying  south  and  east  of  Broadway  and  Whitehall  street. 

3.  The  third  district  embraces  the  ninth  and  fifteenth 
wards. 

4.  The  fourth  district  embraces  the  tenth  and  seven- 
teenth wards. 

5.  The  fifth  district  embraces  the  eleventh  ward  and 
all  that  portion  of  the  thirteenth  ward  which  lies  east  of 
the  center  line  of  Norfolk  street  and  north  of  the  center 
line  of  Grand  street  and  west  of  the  center  line  of  Pitt 
street  and  north  of  the  center  line  of  Delancey  street. 

6.  The  sixth  district  embraces  the  eighteenth  and 
twenty-first  wards. 

7.  The  seventh  district  embraces  the  nineteenth 
ward. 

8.  The  eighth  district  embraces  the  sixteenth  and 
twentieth  wards. 

9.  The  ninth  district  embraces  the  twelfth  ward,  ex- 
cept that  portion  thereof  which  lies  west  of  the  center 
line  of  Lenox  or  Sixth  avenue  and  of  the  Harlem  river 
north  of  the  terminus  of  Lenox  avenue. 

10.  The  tenth  district  embraces  that  portion  of  the 
twenty-second  ward  south  of  Seventieth  street. 

11.  The  twelfth*  district  embraces  that  portion  of  the 
twenty-second  ward  north  of  Seventieth  street  and  that 

*So  in  original. 


1-i  Borough  of  Manhattan.     Char.,  §  1300. 

portion  of  the  twelfth  ward  which  lies  north  of  the 
center  line  of  Eighty-sixth  street  and  west  of  the  center 
line  of  Seventh  avenne  and  south  of  the  center  line  of 
One  Hundred  and  Twentieth  street  between  Seventh 
avenue  and  Broadway  and  south  of  the  center  line  of 
One  Hundred  and  Nineteenth  street  between  Broad- 
way and  the  North  or  Hudson  river. 

12.  The  eleventh*  district  embraces  that  portion  of 
the  twelfth  ward  which  lies  north  of  the  center  line  of 
West  One  Hundred  and  Tenth  street  between  Lenox 
avenue  and  Seventh  avenue  north  of  the  center  line  of 
One  Hundred  and  Twentieth  street  between  Seventh 
avenue  and  Broadway,  and  north  of  the  center  line  of 
One  Hundred  and  Nineteenth  street  between  Broad- 
way and  the  North  or  Hudson  river,  and  west  of  the 
center  line  of  Lenox  or  Sixth  avenue  and  of  the  Harlem 
river  north  of  the  terminus  of  Lenox  or  Sixth  avenue. 

13.  The  thirteenth  district  embraces  the  seventh 
ward  and  all  that  portion  of  the  thirteenth  ward  which 
lies  east  of  the  center  line  of  Norfolk  street  and  south  of 
the  center  line  of  Grand  street  and  east  of  the  center 
line  of  Pitt  street  and  south  of  the  center  line  of  De- 
lancey  street. 

§  2.  There  shall  be  elected  at  the  general  election  to 
be  held  on  the  first  Tuesday  after  the  first  Monday  of 
November,  nineteen  hundred  and  three,  justices  to  hold 
court  in  the  said  twelfth  and  thirteenth  districts.  Such 
justices  shall  enter  upon  the  performance  of  their 
duties  on  the  first  day  of  January  succeeding  their 

*  So  in  original. 


Chak.,  §  1360.     Borough  of  Manhattan.  15 

election,  and  their  term  of  office  shall  be  for  ten  years. 
The  mayor  shall  appoint  a  suitable  person  resident  in 
the  district  as  justice  of  the  court  of  the  twelfth  and 
thirteenth  districts  respectively  to  serve  until  the  first 
day  of  January,  nineteen  hundred  and  four.  The  board 
of  estimate  and  apportionment  may  meet  at  any  time  to 
provide  for  the  immediate  expenses  of  the  municipal 
courts  of  the  said  twelfth  and  thirteenth  districts, 
including  the  payment  of  salaries.  The  commissioners 
of  the  sinking  fund  shall  secure  by  renting,  purchase  or 
by  the  purchase  of  a  plat*  of  ground  and  erecting  a 
building  thereon,  suitable  rooms  for  the  use  of  the  said 
courts,  and  the  commissioner  of  public  works  shall 
provide  suitable  furniture,  books,  blanks,  stationery 
and  other  articles  necessary  for  the  use  of  the  said 
courts.  The  persons  appointed  as  justices  of  the  said 
courts  may  make  temporary  appointments  of  clerk  and 
assistant  clerk  for  terms  not  exceeding  their  own.  The 
justices,  stenographers,  clerks,  assistant  clerks,  attend- 
ants and  interpreters  heretofore  elected  or  appointed 
for  the  fifth  and  tenth  and  eleventh  districts  as  consti- 
tuted at  the  time  of  the  passage  of  this  act  are  contin- 
ued in  office  for  the  fifth  and  tenth  and  eleventh  dis- 
tricts respectively  as  constituted  by  this  act. 

§  3.  Nothing  in  this  act  contained  shall  affect  in  any- 
wise any  action  pending  in  any  of  said  courts  before 
this  act  shall  take  effect.  All  acts  and  parts  of  acts  now 
in  force  and  not  inconsistent  with  this  act  which  are 
applicable  to  the  municipal  courts  of  the  city  of  New 

*So  in  original. 


16  Boeough  of  Manhattan.     Char.,  §  1360. 

York  shall  be  applicable  to  the  court  of  the  twelfth  and 
thirteenth  districts. 

§  4.  The  comptroller  shall,  without  the  concurrence 
or  approval  of  any  other  officer,  board  or  department, 
provide  the  fund  necessary  for  the  payment  of  the 
salaries  of  the  justices,  clerks,  assistant  clerks,  attend- 
ants, stenographers  and  interpreters  of  the  twelfth  and 
thirteenth  district  courts  as  constituted  by  this  act,  for 
the  year  nineteen  hundred  and  three,  by  the  issue  of 
special  revenue  bonds  as  may  be  required  to  pay  said 
salaries. 

§  5.  This  act,  so  far  as  it  authorizes  the  appointment 
by  the  mayor  of  justices  of  the  twelfth  and  thirteenth 
district  courts  shall  take  effect  immediately ;  but  in  all 
other  respects  shall  not  take  effect  until  twenty  days 
after  it  shall  become  a  law.  (As  amended  by  Laws 
1903,  chap.  645,  in  effect  May  22, 1903.) 

Notes  to  Charter  section     1360,  "  Borough  of  Manhattan." 

The  foregoing  section  will  remain  the  law  until  January  1,  1906, 
when,  in  pursuance  of  the  act  of  the  Legislature  (Laws  1905,  chap. 
730),  changes  are  made  in  the  boundaries  of  the  seventh,  ninth,  tenth, 
and  twelfth  districts,  and  a  new  district,  the  fourteenth  district,  is 
created.     Laws  1905,  chapter  730,  is  as  follows: 

Section  1.  Section  thirteen  hundred  and  sixty  of 
the  Greater  New  York  charter  as  enacted  by  chapter 
four  hundred  and  sixty-six  of  the  laws  of  nineteen  hun- 
dred and  one  is  hereby  amended  so  as  to  read  as 
follows : 

CHARTER,  §  1360.  In  the  borough  of  Manhattan 
there  shall  be  fourteen  districts  as  follows : 

1.  The  first  district  embraces  the  third,  fifth  and 
eighth  wards  of  said  borough  of  Manhattan,  and  all 


Char.,  §  1360.     Borough  of  Manhattan.  17 

that  part  of  the  first  ward  lying  west  of  Broadway  and 
Whitehall  street,  including  Xuttin  or  Governor's 
island,  Bedloe's  island,  Bucking  or  Ellis  island,  and 
the  Oyster  islands. 

2.  The  second*  embraces  the  second,  fourth,  sixth 
and  fourteenth  wards,  and  all  that  portion  of  the  first 
ward  lying  south  and  east  of  Broadway  and  White- 
hall street. 

3.  The  third  district  embraces  the  ninth  and  fif- 
teenth wards. 

4.  The  fourth  district  embraces  the  tenth  and 
seventeenth  wards. 

5.  The  fifth  district  embraces  the  eleventh  ward 
and  all  that  portion  of  the  thirteenth  ward  which  lies 
east  of  the  center  line  of  Norfolk  street  and  north  of 
the  center  line  of  Grand  street  and  west  of  the  center 
line  of  Pitt  street  and  north  of  the  center  line  of 
Delancey  street. 

6.  The  sixth  district  embraces  the  eighteenth  and 
twenty-first  wards. 

7.  The  seventh  district  embraces  the  nineteenth 
ward  except  that  portion  embraced  in  the  fourteenth 
district. 

8.  The  eighth  district  embraces  the  sixteenth  and 
twentieth  wards. 

9.  The  ninth  district  embraces  the  twelfth  ward, 
except  that  portion  thereof  which  lies  west  of  the 
center  line  of  Lenox  or  Sixth  avenue  and  of  the  Har- 
lem river  north  of  the  terminus  of  Lenox  avenue,  and 
that  portion  embraced  in  the  fourteenth  district. 

*  So  in  original.     The  word  "  district  "  is  omitted. 


IS  Borough  of  Manhattan.     Char.,  §  1360. 

10.  The  tenth  district  embraces  that  portion  of  the 
twenty-second  ward  south  of  Seventieth  street,  ex- 
cept that  portion  embraced  in  the  fourteenth  district. 

11.  The  twelfth*  district  embraces  that  portion  of 
the  twenty-second  ward  north  of  Seventieth  street 
and  that  portion  of  the  twelfth  ward  which  lies  north 
of  the  center  line  of  Eighty-sixth  street  and  west  of 
the  center  line  of  Seventh  avenue  and  south  of  the 
center  line  of  One  hundred  and  twentieth  street  be- 
tween Seventh  avenue  and  Broadway  and  south  of 
the  center  line  of  One  hundred  and  nineteenth  street 
between  Broadway  and  the  North  or  Hudson  river, 
except  that  portion  embraced  in  the  fourteenth 
district. 

12.  The  eleventh*  district  embraces  that  portion  of 
the  twelfth  -ward  which  lies  north  of  the  center  line  of 
West  One  hundred  and  tenth  street  between  Lenox 
avenue  and  Seventh  avenue  north  of  the  center  line 
of  One  hundred  and  twentieth  street  between  Seventh 
avenue  and  Broadway,  and  north  of  the  center  line  of 
One  hundred  and  nineteenth  street  between  Broad- 
way and  the  North  or  Hudson  river,  and  west  of  the 
center  line  of  Lenox  or  Sixth  avenue  and  of  the 
Harlem  river  north  of  the  terminus  of  Lenox  or  Sixth 
avenue. 

13.  The  thirteenth  district  embraces  the  seventh 
ward  and  all  that  portion  of  the  thirteenth  ward  which 
lies  east  of  the  center  line  of  Norfolk  street  and  south 
of  the  center  line  of  Grand  street  and  east  of  the 

*So  in  original. 


Char.,  §  1360.     Borough  of  Manhattan.  19 

center  line  of  Pitt  street  and  south  of  the  center  line 
of  Delancey  street. 

14.  The  fourteenth  district  embraces  that  portion 
of  the  borough  of  Manhattan  bounded  as  follows : 
Beginning  at  West  Fortieth  street  and  Eighth  avenue, 
north  on  Eighth  avenue  to  West  Fifty-third  street, 
east  on  West  Fifty-third  street  to  Seventh  avenue, 
north  on  Seventh  avenue  to  West  Fifty-ninth  street, 
west  on  West  Fifty-ninth  street  to  Eighth  avenue, 
north  on  Eighth  avenue  and  Central  Park  West  to  the 
Transverse  road  at  Central  Park  West  and  West 
Ninety-seventh  street,  east  on  the  Transverse  road  to 
Fifth  avenue  and  East  Ninety-seventh  street,  south 
on  Fifth  avenue  to  East  Ninety-sixth  street,  east  on 
Ninety-sixth  street  to  Lexington  avenue,  south  on 
Lexington  avenue  to  East  Sixty-fifth  street,  west  on 
East  Sixty-fifth  street  to  Park  avenue,  south  on  Park 
avenue  to  East  Sixty-first  street,  east  on  East  Sixty- 
first  street  to  Lexington  avenue,  south  on  Lexington 
avenue  to  East  Fortieth  street,  west  on  East  and 
West  Fortieth  street  to  the  point  of  beginning  at 
West  Fortieth  street  and  Eighth  avenue. 

§  2.  There  shall  be  elected  at  the  general  election 
to  be  held  on  the  first  Tuesday  after  the  first  Monday 
of  November,  nineteen  hundred  and  five,  a  justice  for 
the  said  fourteenth  district  by  the  electors  thereof. 
Such  justice  shall  enter  upon  the  performance  of  his 
duties  on  the  first  day  of  January  succeeding  his 
election,  and  his  term  of  office  shall  be  for  ten  years. 
The  board  of  estimate  and  apportionment  may  meet 
at  any  time  to  provide  for  the  immediate  expenses  of 


20  Borough  of  Manhattan.     Char.,  §  1360. 

the  municipal  court  of  the  said  fourteenth  district,  in- 
cluding the  payment  of  salaries.  The  commissioner 
of  the  sinking  fund  shall  secure,  by  renting,  or  by  the 
purchase  of  a  plot  of  ground,  and  erecting  a  build- 
ing thereon,  suitable  rooms  for  the  use  of  the  said 
court,  and  the  commissioner  of  public  works  shall  pro- 
vide suitable  furniture,  books,  blanks,  stationery,  and 
other  articles  necessary  for  the  use  of  said  court. 
The  justices,  stenographers,  clerks,  assistant  clerks, 
attendants,  interpreters  heretofore  elected  or  ap- 
pointed for  the  seventh,  ninth,  tenth  and  twelfth  dis- 
tricts as  constituted  at  the  time  of  the  passage  of  this 
act,  are  to  continue .  in  office  for  the  seventh,  ninth, 
tenth  and  twelfth  districts,  respectively,  as  consti- 
tuted by  this  act. 

§  3.  The  comptroller  shall,  without  the  concurrence 
or  approval  of  any  other  officer,  board  or  department, 
provide  the  fund  necessary  for  the  securing  of  suit- 
able rooms  for  the  use  of  the  said  court  in  the  four- 
teenth district  and  providing  it  with  suitable  furni- 
ture, books,  blanks,  stationery  and  other  articles 
necessary  for  the  use  of  the  said  court  by  the  issue 
of  special  revenue  bonds  as  may  be  required  to  pay 
said  expenses. 

§  4.  This  act,  so  far  as  it  requires  the  securing  of 
suitable  rooms,  furniture,  books,  blanks,  stationery  and 
other  articles  necessary  for  the  use  of  the  said  court 
in  the  fourteenth  district;  so  far  as  it  authorizes  the 
payment  of  the  expenses  so  incurred;  and  so  far  as  it 
provides  for  elections  to  be  held  during  the  year  nine- 
teen hundred  and  five,  shall  take  effect  immediately, 


Char.,  §  1361.       Borough  of  Brooklyn.  21 

but  in  all  other  respects  shall  not  take  effect  until 
January  first,  nineteen  hundred  and  six.  (As  amended, 
Laws  1905,  chap.  730.) 

Borough  of  Brooklyn. 

CHARTER,  §  1361.  In  the  borough  of  Brooklyn 
there  shall  be  seven  districts,  as  follows: 

1.  The  first  district  embraces  the  first,  second, 
third,  fourth,  fifth,  sixth,  tenth  and  twelfth  wards  and 
that  portion  of  the  eleventh  ward  beginning  at  the 
intersection  of  the  centre  lines  of  Hudson  and  Myrtle 
avenues,  thence  along  the  centre  line  of  Myrtle  avenue 
to  North  Portland  avenue,  thence  along  the  centre 
line  of  North  Portland  avenue  to  Flushing  avenue, 
thence  along  the  centre  line  of  Flushing  avenue  to 
Navy  street,  thence  along  the  centre  line  of  Navy 
street  to  Johnson  street,  thence  along  the  centre  line 
of  Johnson  street  to  Hudson  avenue,  and  thence  along 
the  centre  line  of  Hudson  avenue  to  the  point  of 
beginning. 

2.  The  second  district  embraces  the  seventh  ward 
and  that  portion  of  the  twenty-first  and  twenty-third 
wards  west  of  the  centre  line  of  Stuyvesant  avenue 
and  the  centre  line  of  Schenectady  avenue,  also  that 
portion  of  the  twentieth  ward  beginning  at  the  inter- 
section of  the  centre  lines  of  North  Portland  and 
Myrtle  avenues,  thence  along  the  centre  line  of 
Myrtle  avenue  to  Waverly  avenue,  thence  along  the 
centre  line  of  Waverly  avenue  to  Park  avenue,  thence 
along  the  centre  line  of  Park  avenue  to  Wash- 
ington avenue,  thence  along  the  centre  line  of  Wash- 


22  Bokough  of  Brooklyn.       Char.,  §  1361. 

ington  avenue  to  Flushing  avenue,  and  thence  along 
the  centre  line  of  Flushing  avenue  to  North  Portland 
avenue,  and  thence  along  the  centre  line  of  North 
Portland  avenue  to  the  point  of  beginning. 

3.  The  third  district  embraces  the  thirteenth,  four- 
teenth, fifteenth,  sixteenth,  seventeenth,  eighteenth 
and  nineteenth  wards  and  that  portion  of  the  twenty- 
seventh  ward  lying  northwest  of  the  centre  line  of 
Starr  street  between  the  boundary  line  of  Queens 
county  and  the  centre  line  of  Central  avenue  and 
northwest  of  the  centre  line  of  Suydam  street  between 
the  centre  lines  of  Central  and  Bushwick  avenues,  and 
northwest  of  the  centre  line  of  Willoughby  avenue  be- 
tween the  centre  lines  of  Bushwick  avenue  and  Broad- 
way. 

4.  The  fourth  district  embraces  the  twenty-fourth 
and  twenty-fifth  wards,  that  portion  of  the  twenty- 
first  and  twenty-third  wards  lying  east  of  the  centre 
line  of  Stuyvesant  avenue  and  east  of  the  centre  line 
of  Schenectady  avenue  and  that  portion  of  the  twenty- 
seventh  ward  lying  southwest  of  the  centre  line  of 
Starr  street  between  the  boundary  line  of  Queens 
county  and  the  centre  line  of  Central  avenue,  and 
southeast  of  the  centre  line  of  Suydam  street  between 
the  centre  lines  of  Central  and  Bushwick  avenues,  and 
southeast  of  the  centre  line  of  Willoughby  avenue 
between  the  centre  lines  of  Bushwick  avenue  and 
Broadway. 

5.  The  fifth  district  embraces  the  eighth,  thirtieth 
and  thirty-first  wards  and  that  portion  of  the  twenty- 
second  ward  south  of  the  centre  line  of  Prospect 
avenue. 


Char.,  §  1361.       Borough  of  Brooklyn.  23 

6.  The  sixth  district  embraces  the  ninth  and  twenty- 
ninth  wards  and  that  portion  of  the  twenty-second 
ward  north  of  the  centre  line  of  Prospect  avenue,  also 
that  portion  of  the  eleventh  and  twentieth  wards  be- 
ginning at  the  intersection  of  the  centre  lines  of 
Bridge  and  Fulton  streets,  thence  along  the  centre 
line  of  Fulton  street  to  Flatbush  avenue,  thence  along 
the  centre  line  of  Flatbush  avenue  to  Atlantic  avenue, 
thence  along  the  centre  line  of  Atlantic  avenue  to 
Washington  avenue,  thence  along  the  centre  line  of 
Washington  avenue  to  Park  avenue,  thence  along  the 
centre  line  of  Park  avenue  to  Waverly  avenue,  thence 
along  the  centre  line  of  Waverly  avenue  to  Myrtle 
avenue,  thence  along  the  centre  line  of  Myrtle  ave- 
nue to  Hudson  avenue,  thence  along  the  centre  line 
of  Hudson  avenue  to  Johnson  street,  and  thence  along 
the  centre  line  of  Johnson  street  to  Bridge  street,  and 
thence  along  the  centre  line  of  Bridge  street  to  the 
point  of  beginning. 

7.  The  seventh  district  embraces  the  twenty-sixth, 
twenty-eighth  and  thirty-second  wards. 

§  3.  This  act  shall  not  affect  any  action  or  proceed- 
ing in  the  municipal  courts  as  presently  constituted, 
pending  before  the  first  day  of  January  nineteen  hun- 
dred and  six  or  affect  until  then  any  of  the  districts 
mentioned  in  said  section  thirteen  hundred  and  sixty- 
one  of  said  act  before  this  amendment  thereof  or 
affect  in  any  wise  the  justices  of  the  districts  now 
existing,  who  shall  until  the  expiration  of  their  re- 
spective terms  be  and  continue  as  justices  of  said 
court  for  the  districts  for  which  they  were  elected, 


24  Borough  of  Brooklyn.      Char.,  §  1361. 

and  of  the  districts  by  this  act  territorially  changed 
and  altered,  bearing  the  same  number  as  that  in  and 
for  which  they  were  respectively  elected.  The  com- 
missioners of  the  sinking  fund  shall  procure  by  rent- 
ing, purchase,  or  by  purchase  of  a  plot  of  ground  and 
erecting  a  building  thereon,  suitable  rooms  for  the  use 
of  the  courts  of  the  sixth  and  seventh  districts  by 
this  act  created,  and  the  commissioner  of  public  works 
shall  provide  suitable  furniture,  books,  blanks,  station- 
ery and  other  articles  necessarv  therefoi,  in  time  for 
the  effectual  operation  of  said  courts  on  the  first  day 
of  January,  nineteen  hundred  and  six.  The  board  of 
estimate  and  apportionment  may  meet  at  any  time 
to  provide  for  the  expense  of  securing  such  suitable 
rooms  for  and  furnishing  and  equipping  said  courts, 
and  shall  make  provision  for  the  payment  of  the 
salaries  of  the  justices,  clerks,  assistant  clerks,  stenog- 
raphers, interpreters  and  court  attendants  in  said 
districts  for  the  year  nineteen  hundred  and  six,  and 
shall  annually  include  in  the  budget  such  sums  as 
may  be  necessary  to  pay  such  salaries,  and  the  comp- 
troller of  the  city  of  New  York,  in  order  to  secure  such 
rooms  and  equip  said  courts,  shall,  without  the  con- 
currence of  any  other  officer,  board  or  department 
provide  the  fund  necessary  therefor  by  the  issue  of 
special  revenue  bonds  of  said  city. 

§  4.  All  acts  and  parts  of  acts  inconsistent  herewith 
are  hereby  repealed. 

§  5.  This  act  shall  take  effect  immediately.  (As 
amended  by  Laws  1905,  chap.  758.) 


Char.,  §  13 Gl.      Borough  of  Brooklyn.  25 

Notes  to  Charter  section    1373,  "Clerks  and  Assistant  Clerks." 

Clerks  and  assistant  clerks;  removal  of  veteran. —  Section  1373  of 
the  revised  Greater  New  York  charter  (Laws  1901,  chap.  4GG),  as 
amended  by  chapter  497  of  the  Laws  of  1902,  which  authorizes  a  justice 
of  the  Municipal  Court  of  the  city  of  Xew  York  to  remove  an  attendant 
employed  about  the  court,  upon  giving  him  notice  of  the  cause  of  his 
proposed  removal  and  an  opportunity  to  make  an  explanation,  is  to 
be  construed,  in  the  case  of  a  veteran  of  the  Spanish-American  war,  in 
connection  with  and  is  limited  by  section  21  of  the  Civil  Service  Law 
(Laws  1S99,  chap.  370,  as  amended  by  Laws  1902,  chap.  270),  which 
provides  that  no  honorably  discharged  soldier  who  served  in  the  volun- 
teer army  of  the  United  States  during  the  Spanish  war  shall  be  re- 
moved from  the  position  or  employment  held  by  him  except  for  in- 
competence or  misconduct  shown,  "  after  a  hearing,  upon  due  notice, 
upon  stated  charges,  and  with  the  right  to  such  employee  or  appointee 
to  a  review  by  a  writ  of  certiorari."  People  ex  rel.  Reilly  v.  Hoffman, 
98  App.  Div.  4. 

Notes  to  Charter  section    1383,  "  Removal." 

Removal  of  justice;  causes  for;  the  office  is  vacated  by  a  change 
of  residence;  inhabitant  defined;  remedy  by  quo  warranto;  the  rules  of 
the  Municipal  Court  have  the  force  of  law;  favoritism  by  the  justice; 
assignment  of  a  cause  of  action  to  enable  suit  to  be  brought  in  a  par- 
ticular court;  what  ex  parte  applications  in  actions  in  another  court 
may  be  made  to  a  justice;  an  order  to  exhibit  writings  must  be  made 
by  the  court;  application  of  the  practice  in  the  Supreme  Court;  open- 
ing defaults. —  A  judicial  officer  may  not  be  removed  for  merely  mak- 
ing an  erroneous  decision  or  ruling,  but  he  may  be  removed  for  will- 
fully making  a  wrong  decision  or  an  erroneous  ruling  or  for  a  reckless 
exercise  of  his  judicial  functions  without  regard  to  the  right  of  liti- 
gants, or  for  manifesting  friendship  or  favoritism  toward  one  party 
or  his  attorney  to  the  prejudice  of  another  and  to  the  destruction  of 
his  usefulness  as  a  magistrate  through  the  loss  of  public  confidence  in 
his  fairness  or  integrity.  Under  section  1353  of  the  amended  Greater 
New  York  charter  (Laws  of  1901,  chap.  466),  which  provides  that  a 
justice  of  the  Municipal  Court  of  the  city  of  New  York  shall  be  "  a 
resident  and  elector  "  of  the  district  for  which  he  shall  be  elected  or 
appointed,  and  under  the  provision  of  the  Public  Officers  Law  (Laws 
of  1892,  chap.  681),  which  provides  that  every  office  shall  become 
"  vacant  "  upon  the  incumbent's  ceasing  to  be  an  "  inhabitant "  of  the 
political  division  of  which  he  is  required  to  be  a  "  resident "  when 
elected  or  appointed,  the  action  of  a  justice  of  the  Municipal  Court  of 
the  city  of  New  York  in  the  borough  of  Manhattan,  second  district,  in 
removing  from  said  district  after  his  election  and  becoming  an  in- 
habitant  of   White   Plains,   Westchester   county,   N.   Y.,   furnishes   suf- 


26     Summons  and  Costs  in  City  Cases.     Char.,  §  1384. 

ficient  ground  for  the  removal  of  said  justice  by  the  Appellate  Division 
in  proceedings  instituted  under  section  1383  of  the  Greater  New  York 
charter,  even  though  the  justice  in  question,  when  he  removed  to  White 
Plains,  did  not  intend  to  give  up  his  residence  in  the  district  for  which 
he  had  been  elected  or  to  forfeit  his  office. 

The  term  "  inhabitant,"  as  used  in  the  provision  of  the  Public  Officers 
Law,  before  mentioned,  has  reference  to  the  officer's  abode  or  domicile 
as  distinguished  from  his  legal  residence.  Quccre,  whether,  under  such 
circumstances,  the  justice  in  question  could  be  removed  from  his  office 
in  an  action  of  quo  tvarranto. 

Rules  enacted  by  the  board  of  justices  of  the  Municipal  Court,  pur- 
suant to  section  12  of  the  Municipal  Court  Act  (Laws  of  1902,  chap. 
580),  have  the  force  of  law  and  are  binding  upon  the  individual  justices. 

Favoritism  in  the  performance  of  judicial  duties  constitutes  cor- 
ruption. The  willful  abuse  of  judicial  discretion  is  the  most  oppressive 
and  injurious  kind  of  official  misconduct. 

The  fact  that  an  assignment  of  a  cause  of  action  was  made  for  the 
purpose  of  enabling  an  action  to  enforce  the  same  to  be  brought  in  a 
particular  district  of  the  Municipal  Court  of  the  city  of  New  Y'ork 
does  not  invalidate  the  assignment,  but  such  practice  should  not  be 
encouraged. 

Rule  15  of  the  rules  of  the  Municipal  Court  of  the  city  of  New  Y'ork 
which  provides  that  ex  parte  applications  may  be  made  to  any  justice, 
only  authorizes  applications  in  actions  pending  in  one  district  to  a 
justice  of  another  district  for  such  orders  as  may  be  granted  by  a 
justice  as  distinguished  from  the  court. 

The  authority  contained  in  section  165  of  the  Municipal  Court  Act, 
for  ordering  the  exhibition  of  a  writing  or  account  declared  on  in  an 
action  in  the  Municipal  Court,  is  conferred  upon  the  court  and  not 
upon  a  justice  thereof.  The  section  does  not  authorize  the  examination 
of  books  as  by  a  bill  of  discovery. 

The  extension  of  the  practice  in  courts  of  record  to  the  Municipal 
Court  of  the  city  of  New  York  by  section  20  of  the  Municipal  Court 
Act  was  merely  intended  to  regulate  the  matters  over  which  the 
Municipal  Court  has  jurisdiction. 

Section  253  of  the  Municipal  Court  Act,  authorizing  the  opening  of 
defaults  or  omissions  on  such  notice  as  the  court  may  direct,  contem- 
plates an  order  by  the  court  in  which  the  default  was  taken.  Matter 
of  Bolte,  97  App.  Div.  551. 

Summons  and  costs  in  actions  by  city  of  New  York,  for  recov- 
ery of  penalties. 
CHARTER,  §  1384.  In  any  and  all  actions  brought 
in  the  name  of  the  people  of  the  state  of  New  York 


Char.,  §  1384.     Summons  and  Costs  in  City  Cases.     27 

by  the  attorney  general  or  in  the  name  of  the  city  of 
New  York,  or  of  any  department,  board  or  officer 
thereof,  by  the  corporation  counsel  of  the  city  of  New 
York,  as  attorney  for  said  city,  or  said  department, 
board  or  officer  thereof,  to  recover  a  penalty  or 
penalties  for  the  violation  of  any  law  or  ordinance, 
the  summons  may  be  issued  out  of  said  court  by  the 
attorney  general  or  by  the  corporation  counsel  in  his 
own  name  without  the  same  being  subscribed  by  the 
clerk  of  the  court  where  such  action  or  actions  are 
brought,  and  in  such  actions  the  attorney  general  or 
the  corporation  counsel  shall  not  be  required  to  pay 
to  the  clerk  of  the  court  the  fees  in  the  action,  but 
shall  account  therefor  to  the  city  treasurer  and  shall 
collect  the  same  from  the  defendant,  when  judgment 
is  recovered;  and  no  fees  or  costs  shall  be  demanded 
of  the  people  of  the  state  of  New  York  or  the  attorney 
general  or  of  the  said  the  city  of  New  York,  or  any 
department,  board  or  officer  thereof  in  any  such  suit 
or  proceeding.  (As  amended  by  Laws  1905,  chap.  125; 
became  a  law  March  31,  1905.) 

Note  to    Charter  section   1384. 

This  section  is  the  same  as  section  29  of  the  Municipal  Court  Act 
(Laws  1905,  chap.  73),  which  became  a  law  March  17,  1905,  with  the 
exception  of  the  omission  of  the  word  "  department "  before  the  word 
"  board  "  in  the  last  line. 

Notes  to  Charter  section     1427,  "  Marshals." 

Additional  personal  property  exempt  in  certain  cases. —  See  amend- 
ment to  Code  Civil  Procedure,  section  1391,  by  Laws  1905,  chapter  175, 
to  be  found  under  section  271,  p.  103  of  this  supplement. 


THE 

MUNICIPAL  COURT  ACT  OF  THE  CITY  OF 
NEW  YORK. 


(LAWS  1902,  CHAP.  280),  AS  AMENDED  BY  LAWS  1903,  1904, 
AND  1905,  WITH  NOTES  OF  THE  DECISIONS  BY  THE  COURTS 
AFFECTING-  THE  SAME. 

§  1.  Jurisdiction. —  Except  as  provided  in  the  next  section 
the  municipal  court  of  the  city  of  New  York  has  jurisdiction 
in  the  following  civil  actions  and  proceedings : 

1.  An  action  to  recover  damages  upon  or  for  breach  of 
contract,  express  or  implied,  other  than  a  promise  to  marry, 
where  the  sum  claimed  does  not  exceed  five  hundred  dollars, 
exclusive  of  interest  and  costs. 

2.  An  action  upon  a  bond  conditioned  for  the  payment  of 
money  where  the  sum  claimed  to  be  due  does  not  exceed  five 
hundred  dollars,  exclusive  of  interest  and  costs,  the  judgment 
to  be  rendered  for  the  sum  actually  due.  Where  the  sum 
secured  by  the  bond  is  to  be  paid  in  installments,  an  action 
may  be  brought  for  each  installment  as  it  becomes  due. 

3.  An  action  upon  a  surety  bond  or  undertaking  taken  in 
any  court  where  the  amount  claimed  in  the  summons  does 
not  exceed  the  sum  of  five  hundred  dollars,  exclusive  of 
interest  and  costs. 

4.  An  action  in  behalf  of  the  people  of  the  state  or  of  the 
city  of  New  York,  brought  by  the  direction  of  a  commissioner 
of  public  charities  or  an  overseer  of  the  poor  upon  a  bastardy 
or  abandonment  bond  in  a  case  where  it  is  prescribed  by  law 
tli at  such  an  action  can  be  maintained. 

5.  An  action  upon  the  bond  of  a  marshal  of  the  city  of 
New  York,  as  prescribed  in  this  act. 

6.  An  action  upon  a  judgment  rendered  in  any  court  not 
being  a  court  of  record. 

7.  An  action  for  a  fine  or  penalty  not  exceeding  five  hun- 
dred dollars,  including  an  action  to  recover  a  penalty  given 

[29] 


30  Jurisdiction  and  General  Powers.  §  1. 

by  the  charter  of  the  city  of  Xew  York  or  any  by-law  or 
ordinance  thereof  or  by  any  statute  of  the  state. 

8.  An  action  to  recover  damages  for  an  escape  from  the 
jail  liberties  of  any  county  within  the  city  of  ISTew  York, 
where  the  sum  claimed  does  not  exceed  five  hundred  dollars 
and  costs. 

9.  An  action  to  recover  one  or  more  chattels  with  or  with- 
out damages  for  the  taking,  withholding  or  detention  thereof, 
where  the  value  of  the  chattel  or  of  all  the  chattels  as  stated 
in  the  affidavit  made  on  the  part  of  the  plaintiff  does  not 
exceed  five  hundred  dollars. 

10.  An  action  to  foreclose  a  lien  upon  a  chattel  for  a  sum 
of  money,  in  any  case  where  such  a  lien  exists  at  the  com- 
mencement of  the  action  and  where  the  amount  of  the  lien 
does  not  exceed  five  hundred  dollars,  exclusive  of  interest 
and  costs. 

11.  An  action  to  enforce  a  mechanic's  lien  on  real  property 
in  which  the  court  shall  have  power  to  render  judgment  for 
the  sum  due,  and  to  declare  the  amount  a  valid  lien  against 
the  interest  of  the  defendant  in  the  property  described  in  the 
complaint,  at  the  time  of  the  filing  of  the  lien,  where  the 
amount  does  not  exceed  five  hundred  dollars,  exclusive  of 
interest  and  costs,  but  said  court  cannot  render  judgment  for 
the  foreclosure  and  sale  of  the  property. 

12.  A  summary  proceeding  under  title  two  of  chapter 
seventeen  of  the  code  of  civil  procedure  to  recover  possession 
of  real  property  which,  or  a  portion  of  which,  is  situated 
within  the  district  wherein  the  application  for  such  recovery 
is  made.  Such  proceeding  may  be  tried  with  or  without  a 
jury,  which  may  be  demanded  by  any  party  thereto.  The 
court  in  either  case  has  power  upon  application,  to  allow  the 
petition  or  answer  to  be  amended  at  any  time,  if  substantial 
justice  will  be  promoted  thereby  and  the  rights  of  the  parties 
have  not  been  impaired  by  reason  of  the  defective  pleading, 
to  direct  or  set  aside  a  verdict,  and  to  grant  or  deny  a  motion 
for  a  new  trial,  and  an  appeal  may  be  taken  therefrom. 

13.  An  action  for  damages  for  fraud  or  deceit  where  the 
damages  claimed  do  not  exceed  five  hundred  dollars. 


§  1.  Jurisdiction  and  General  Powers.  31 

14.  An  action  to  recover  damages  for  a  personal  injury, 
or  for  loss  of  services  or  for  medical  or  other  necessary  ex- 
penses occasioned  thereby,  or  an  injury  to  property,  where 
the  sum  claimed  does  not  exceed  five  hundred  dollars,  and 
costs,  excepting  however,  actions  to  recover  damages  for  an 
assault,  battery,  malicious  prosecution,  false  imprisonment, 
libel,  slander,  criminal  conversation,  seduction,  or  loss  of 
society  of  husband  or  wife. 

15.  To  issue  or  vacate  a  requisition  to  replevy,  a  warrant 
of  attachment,  or  an  order  of  arrest ;  or  grant  or  vacate  a  stay 
of  execution,  or  of  proceedings,  within  the  limitations  pro- 
vided in  this  act.     But  such  stay  shall  not  exceed  five  days. 

16.  To  render  judgment  in  an  action  or  make  a  final  order 
in  summary  proceedings  upon  confession  or  upon  the  consent 
of  both  parties. 

IT.  Other  civil  actions  or  proceedings  of  which  district 
courts  in  the  city  of  New  York,  or  justices  of  the  peace  had 
jurisdiction  on  the  thirty-first  day  of  December,  eighteen 
hundred  and  ninety-seven,  except  such  as  shall  be  expressly 
excluded  by  this  act. 

18.  The  jurisdiction  extends  to  actions  against  the  city  of 
New  York,  a  domestic  corporation,  or  a  foreign  corporation 
having  an  office  in  the  city  of  New  York,  an  administrator 
or  executor  as  such,  where  the  amount  claimed  does  not  exceed 
five  hundred  dollars,  exclusive  of  interest  and  costs. 

19.  In  an  action  or  a  summary  proceeding,  to  direct  or  set 
aside  a  verdict,  vacate,  amend  or  modify  a  judgment  or  final 
order,  rendered,  or  made  on  consent,  confession,  inquest  or 
trial,  grant  a  new  trial,  open  a.  default,  or  in  a  proper  case 
grant  a  new  trial  on  the  ground  of  fraud  or  newly  discovered 
evidence.  (As  amended  by  Laws  1905,  chap.  513,  and  be- 
came a  law  May  17,  1905.) 

NOTE. 

The  amendments  add  to  subdivisions  1,  2,  3,  10,  11,  and  18  the  words 
"  exclusive  of  interest  and  costs,"  and  to  subdivisions  8  and  14  the 
words   "  and  costs." 


32  Jurisdiction  and  General  Powers.  §  1. 

Notes  to  section  i,  "Jurisdiction." 

Actions  to  recover  less  than  $250  must  be  brought  in  this  court,  and 
actions  to  recover  less  than  $500  must  be  brought  in  the  City  Court  of 
the  city  of  New  York  or  the  County  Court  of  Kings  county. — 
Section  1.  Section  three  thousand  two  hundred  and  twenty-eight  of  the 
Code  of  Civil  Proa  dure  is  hereby  amended  by  adding  thereto  a  new 
subdivision  to  be  numbered  five  and  to  read  as  follows: 

5.  In  all  actions  hereafter  brought  in  the  Supreme  Court,  triable  in 
the  county  of  New  York  or  the  county  of  Kings,  which  could  have  been 
brought,  except  for  the  amount  claimed  therein,  in  the  City  Court  of 
the  City  of  New  York  or  the  County  Court  of  Kings  county,  and  in 
which  the  defendant  shall  have  been  personally  served  with  process 
within  the  counties  of  New  York  or  Kings,  the  plaintiff  shall  recover 
no  costs  or  disbursements  unless  he  shall  recover  five  hundred  dollars 
or  more;  and  in  all  actions  hereafter  brought  in  the  City  Court  of  the 
City  of  New  York  or  the  County  Court  of  Kings  county,  which  could 
have  been  brought,  except  for  the  amount  claimed  therein,  in  the 
Municipal  Court  of  the  city  of  New  York,  and  in  which  the  defendant 
shall  have  been  personally  served  with  process  within  the  city  of  New 
York,  the  plaintiff  shall  recover  no  costs  or  disbursements  unless  he 
shall  recover  two  hundred  and  fifty  dollars  or  more.  The  fact  that  in 
any  action  a  plaintiff  is  not  entitled  to  costs  under  the  provisions  of 
this  subdivision  shall  not  entitle  the  defendant  to  costs  under  the  next 
following  section. 

§  2.  This  act  shall  take  effect  September  one,  nineteen  hundred  and 
four.     (As  amended  by  Laws  1904,  chap.  557.) 

Amended  rules;  City  Court  of  the  city  of  New  York;  January  5,  1905; 
Rule  4. —  No  action  brought  for  the  recovery  of  less  than  $250  which 
could  have  been  brought  in  the  Municipal  Court  of  the  city  of  New 
York  will  be  advanced  to  the  special  calendar. 

vSubstituted  service;  proof  thereof  requisite  to  jurisdiction. —  Proof 
of  due  substituted  service  and  a  compliance  with  section  34  of  the 
Municipal  Court  Act  are  essential  to  jurisdiction.  A  mere  memorandum 
on  the  summons  of  payment  of  fees  is  not  such  proof  of  substituted 
service.  Objection  to  jurisdiction  on  such  ground  may  be  raised  at  any 
time.     Skinner  v.  Jordan,  46  Misc.  Rep.  92. 

Waiver  of  jurisdiction. —  The  fact,  that  after  the  denial  of  the  motion 
to  vacate  the  attachment,  the  action  was  dismissed  because  of  the 
failure  of  either  party  to  appear  on  the  day  set  for  its  trial,  and  that 
the  defendant  subsequently  consented  that  the  case  be  restored  to  the 
calendar  and  allowed  judgment  to  be  taken  against  him  by  default, 
does  not  operate  as  a  waiver  of  the  defendant's  right  to  contest  the 
jurisdiction  of  the  court.     Delaney  v.  Bouse,  91  App.  Div.  437. 


§  1.  Jurisdiction  and  General  Powers.  33 

Notes  to  section  i,  subdivision  i. 

Author's  contract  for  royalties;  effect  of  prior  contract  for  the  pub- 
lication, not  carried  out. —  Where  a  publisher  contracts  to  publish  a 
novel  "  in  book  form  "  it  is  no  defense  to  an  action  by  the  author  for 
the  royalties  that  he,  with  the  knowledge  of  the  defendant,  had  previ- 
ously contracted  with  another  publisher  for  the  publication  of  the 
same  book,  the  conditions  being  that  the  book  be  published  within  a 
given  time  (which  was  not  done),  and  which  failure  gave  to  the  author 
a  reversion  of  the  rights  upon  the  payment  of  a  given  sum. 

Nor  is  it  a  defense  that  the  author  has  not  yet  paid  such  given  sum 
to  the  other  publisher,  because,  under  the  contract,  the  defendant  pur- 
chased the  plaintiff's  permission  to  publish,  not  the  right.  Barry  v. 
Smart  Set  Publishing  Co.,  45  Misc.  Rep.  402. 

Bankruptcy;  guarantor  for  rent  held  liable. —  In  an  action  to  re- 
cover rent  upon  a  guarantee  of  defendant  to  pay  the  same,  the  adjudi- 
cation of  the  lessee  a  bankrupt  does  not  terminate  the  lease  and  the 
defendant  is  liable  for  the  rent.  Witthaus  v.  Zimmermann,  N.  Y.  Law 
Journal,  January  20,  1903,  Joseph,  J.,  sitting  in  the  seventh  district, 
Borough  of  Manhattan. 

Brokers'  commissions. —  A  broker  employed  to  procure  a  loan  upon 
property,  who  induces  a  person  financially  able,  and  otherwise  com- 
petent to  make  the  loan,  to  execute  a  written  acceptance  of  the  ap- 
plication for  the  loan  is  not  entitled  to  a  commission,  if  such  person 
subsequently  refuses  to  make  the  loan.  Ashfield  V.  Case,  93  App.  Div. 
452. 

For  notes  and  cases  on  brokers'  commissions,  see  25  Abb.  N.  C.  206, 
209,  etc. 

Authority  to  sell;  written;  constitutionality;  Penal  Code,  section 
64od,  requiring  an  agent  to  obtain  written  authority  to  sell  real  estate 
is  unconstitutional;  what  the  court  may  consider  in  determining  whether 
a  statute  is  reasonable;  limitations  on  the  .legislative  power  to  regulate 
business. —  Section  640d,  added  to  the  Penal  Code  by  chapter  128  of 
the  Laws  of  1901,  which  provides  that  "  in  cities  of  the  first  class  and 
the  second  class  any  person  who  shall  offer  for  sale  any  real  property 
without  the  written  authority  of  the  owner  of  such  property  or  of  his 
attorney  in  fact,  appointed  in  writing,  or  of  a  person  who  has  made  a 
written  contract  for  the  purchase  of  such  property  with  the  owner 
thereof,  shall' be  guilty  of  a  misdemeanor,"  is  unconstitutional  in  that 
it  is  an  unreasonable  interference  with  the  liberty  secured  to  the  person 
affected  thereby  by  both  the  New  York  State  and  Federal  Constitutions. 

In  determining  the  reasonableness  of  a  statute  the  court  is  at  liberty 
to  consider  the  established  usages,  customs,  and  traditions  of  the  people 
and  to  have  in  view  the  promotion  of  their  comfort  and  the  preservation 
of  public  peace  and  good  order.  To  justify  the  State  in  regulating 
a  business  or  occupation  in  behalf  of  the  public  it  must  appear,  first, 
3 


3-i  Jurisdiction  and  General  Powers.  §  1. 

that  the  interests  of  the  public,  generally,  as  distinguished  from  those 
of  a  particular  class,  require  such  interference,  and,  second,  that  the 
means  are  reasonably  necessary  for  the  accomplishment  of  the  purpose 
and  are  not  unduly  oppressive  upon  individuals.  The  Legislature  can- 
not, under  the  guise  of  protecting  the  public  interests,  arbitrarily  inter- 
fere with  private  business  or  impose  unusual  or  unnecessary  restric- 
tions upon  lawful  occupations.     Grossman  v.  Caminez,  79  App.  Div.  15. 

Section  64od  of  the  Penal  Code,  making  it  a  misdemeanor  to  sell  or 
offer  to  sell  in  cities  of  the  first  and  second  class  real  estate  without 
the  written  authority  of  the  owner  is  constitutional. —  Semite,  that  sec- 
tion 640(1  of  the  Penal  Code,  added  by  chapter  128  of  the  Laws  of  1901, 
which  provides  that  in  cities  of  the  first  and  second  class  any  person 
who  shall  offer  real  property  for  sale  without  the  written  authority 
of  the  owner  is  guilty  of  a  misdemeanor,  is  constitutional  and  a 
reasonable  exercise  of  the  police  power.  (See  contra,  Grossman  v. 
Caminez,  79  App.  Div.  15.) 

Criminal  laws  are  not  necessarily  unconstitutional  because  they  bear 
unequally  upon  persons  in  different  parts  of  the  State.  Whiteley  v. 
Terry,  S3  App.  Div.  197. 

Where  the  attorney  in  fact  for  the  owner  of  a  parcel  of  real  property 
in  a  city  of  the  first  class  employs  a  broker  to  effect  an  exchange  of 
such  real  estate  and  executes  and  delivers  to  such  broker,  with  the 
intention  of  authorizing  him  to  negotiate  the  transfer,  the  following 
instrument:  "They  will  take  86st  subject  to  1st  and  2nd  mortgages. 
We  to  take  2Gth  ward  lots  subject  to  taxes  and  assessments  not  to 
exceed  $6,500.00.  William  Dempsey,"  such  instrument  is  a  substantial 
compliance  with  section  640d  of  the  Penal  Code,  which  provides  that  in 
cities  of  the  first  and  second  class,  "  any  person  who  shall  offer  for 
sale  any  real  property  without  the  written  authority  of  the  owner  of 
such  property,  or  of  his  attorney  in  fact,  appointed  in  writing,"  etc., 
shall  be  guilty  of  a  misdemeanor.  Assuming  the  statute  in  question 
to  be  constitutional,  the  failure  of  a  broker,  employed  to  effect  the  sale 
or  exchange  of  real  estate  in  the  city  of  New  York,  to  procure  the 
written  authority  required  by  the  statute,  will  not,  where  the  contract 
of  sale  or  exchange  has  been  executed,  prevent  the  broker  from  recov- 
ering his  commissions,  gemble,  however,  that  the  statute  is  uncon- 
stitutional. Where  a  contract,  not  unlawful  in  itself,  has  been  executed 
and  the  parties  have  enjoyed  the  benefits  of  the  contract,  the  mere 
fact  that  one  of  the  parties  has  violated  a  penal  statute  in  the  approach 
to  the  contract  will  not  prevent  the  court  from  enforcing  payment. 
Cody  v.  Dempsey,  86  App.  Div.  336. 

Construction  of  section  64od  Penal  Code. — A  broker  is  no  guarantor 
of  the  validity  of  the  title  to  real  property  offered  by  him  for  sale  at 
his  own  risk  of  fine  and  imprisonment.  A  broker  who  offers  property 
for  sale  after  having  in  good  faith  obtained  the  written  authorization 
of   the   ostensible  owner  thereof   has   complied  with   the  spirit  of   the 


§    1.  JURISDICTION    AND    GENERAL    POWERS.  35 

law,  and  the  letter  thereof  must  yield  to  such  a  reasonable  and  sensible 
construction.  If  there  are  other  parties  also  owners  whose  authoriza- 
tion was  not  obtained,  that  does  not  relieve  the  defendant,  who  as 
ostensible  owner  employed  the  broker,  from  liability  to  pay  commis- 
sion, nor  is  there  any  question  of  public  policy  involved  preventing  him 
enforcing  his  contract  with  defendant.  Phelps  v.  Becker,  N.  Y.  Law 
Journal,  October  9,  1903,  Tierney,  J.,  sitting  in  the  secojid  district, 
Borough  of  the  Bronx. 

Sales  for  future  delivery;  proof  necessary  to  recover  where  such 
sales  alleged  to  be  mere  wagers;  account  stated,  when  not  proven. —  In 
an  action  by  the  assignee  of  a  broker  to  recover  commissions  and  losses 
on  a  sale  of  cotton  for  future  delivery  the  answer  denied  that  the  sale 
was  bona  fide  and  alleged  it  to  be  in  violation  of  the  law  against 
gambling  and  a  mere  wager  on  the  price  of  cotton.  Held,  in  order  to 
recover,  the  plaintiff  must  give  competent  evidence  of  a  genuine  sale 
and  loss.  Mere  memoranda  of  telephonic  communications  purporting 
tc  carry  out  defendant's  order  are  hearsay  and  are  insufficient  to  estab- 
lish such  sale  and  on  such  evidence  it  is  error  to  refuse  to  dismiss  the 
complaint.  The 'defendant,  having  denied  his  liability,  in  a  personal 
interview  with  the  plaintiff's  assignor,  made  no  reply  to  a  statement 
of  account  thereafter  sent  him.  Held,  such  silence  does  not  bind  the 
defendant  on  an  account  stated.     Jacobs  v.  Colin,  46  Misc.  Rep.  115. 

Building;  damages  for  the  breach  of  a  contract  to  remove,  within  a 
specified  time;  $500  and  interest  and  costs  are  demanded;  bill  of  par- 
ticulars for  $507.33. —  An  action  brought  in  this  court  to  recover  dam- 
ages resulting  from  the  breach  by  the  defendant  of  a  contract  to  re- 
move a  building  within  a  specified  time  was  begun  by  the  service  of  the 
summons  alone,  which  summons  stated  that  in  the  event  of  the  defend- 
ant's default  the  plaintiffs  would  "take  judgment  against  you  for  the 

sum  of  $500  00/100,     *     *     *     with  interest  from  the    day  of 

,  190.  .,  together  with  the  costs  of  this  action." 

The  plaintiffs  subsequently  served  a  bill  of  particulars  in  which  they 
alleged  that  the  damages  resulting  from  the  breach  of  contract  amounted 
to  $507.33.  The  action  was  tried  and  resulted  in  a  judgment  for  the 
plaintiffs  of  $294.37,  which  included  damages  and  costs. 

Held,  that  it  was  improper  to  reverse  the  judgment  and  dismiss  the 
complaint  on  the  ground  that  the  demand  of  the  plaintiffs  was  for  a 
greater  sum  than  $500  and  that  consequently  the  Municipal  Court  had 
no  jurisdiction  of  the  action;  that  the  demand  for  costs  in  excess  of 
the  $500  did  not  oust  the  court  of  jurisdiction,  as  such  costs  were  not 
a  part  of  the  plaintiffs'  demand  but  a  mere  incident  to  the  recovery; 
that  the  demand  for  interest  did  not  oust  the  court  of  jurisdiction,  for 
the  reason  that  the  plaintiffs  were  not  entitled  to  recover  interest  as 
such,  their  damages  being  unliquidated ;  that  the  statement  in  the  bill 
of  particulars  that  the  damages  amounted  to  $507.33  did  not  deprive 
the  court  of  jurisdiction,  as  the  plaintiffs  were  at  liberty,  under  section 


36  Jurisdiction  and  General  Powers.  §  1. 

250  of  the  Municipal  Court  Act,  to  remit  the  excess  over  $500.     Ham- 
burger  v.  Hellman,  103  App.  Div.  263. 

Carrier;  measure  of  damages  against. —  A  lawyer,  delayed  by  a  rail- 
road wreck  and  who  has  not  informed  the  carrier  of  special  circum- 
stances which  make  it  necessary  for  him  to  reach  his  destination  on 
schedule  tiino,  can  recover  of  the  carrier  merely  compensatory  dam- 
ages—  the  value  of  his  time,  during  the  period  of  delay,  based  upon 
the  average  of  what  he  had  earned  for  at  least  a  year  preceding  the 
time  of  the  occurrence.  Cooley  v.  Pennsylvania  R.  R.  Co.,  40  Misc.  Rep. 
239. 

Chattel  mortgages;  conversion;  when  demand  necessary;  section  139 
does  not  prevent  chattel  mortgagees  from  taking  possession  under 
mortgage. —  In  an  action  for  conversion  against  a  chattel  mortgagee, 
alleged  to  have  replevied  the  property  in  violation  of  section  139  of  the 
Municipal  Court  Act  which  provides  that  no  action  can  be  maintained 
in  said  court  on  a  chattel  mortgage  except  to  foreclose  the  same, 
held,  where  the  judgment-roll  in  the  alleged  action  to  replevin  re- 
turned on  appeal  was  only  marked  at  trial  for  identification  and  was 
not  put  in  evidence  and  is  defective  in  proof  of  service  of  summons 
and  in  that  no  writ  of  replevin  is  attached,  etc.,  the  appellate  court  is 
bound  by  the  record.  There  is  nothing  to  show  that  the  property  was 
taken  on  replevin. 

Held,  further,  that  as  the  chattel  mortgage  gave  to  the  mortgagee  a 
right  to  enter,  take  away,  and  sell  the  goods,  etc.,  there  is  nothing  in 
such  record  to  show  that  defendant's  possession  was  not  rightfully 
obtained  under  the  mortgage. 

The  aforesaid  limitation  of  section  139  of  the  Municipal  Court  Act 
does  not  preclude  a  chattel  mortgagee  from  taking  the  possession  ac- 
cording to  the  terms  of  the  mortgage. 

If  the  taking  of  goods  is  lawful  it  does  not  become  unlawful  without 
a  subsequent  demand  for  compliance  with  the  terms  of  the  mortgage, 
or  a  demand  with  tender  of  amount  due.  Shelton  v.  Holzicasser,  46 
Misc.  Rep.  76. 

Conversion,  based  on  a  breach  of  a  written  contract  for  the  condi- 
tional sale  of  personal  property,  will  not  lie. —  Section  139  of  the  act 
relating  to  the  Municipal  Court  of  the  city  of  Xew  York  (Laws  of  1902, 
chap.  580)  which  provides,  "No  action  shall  be  maintained  in  this 
court,  which  arises  on  a  written  contract  of  conditional  sale  of  personal 
property,  where  title  is  not  to  vest  in  the  person  hiring  until  payment 
of  a  certain  sum ;  or  a  chattel  mortgage  made  to  secure  the  purchase 
price  of  chattels;  except,  an  action  to  foreclose  the  lien,  as  provided  in 
this  article,"  limits  the  jurisdiction  of  the  court  with  respect  to  actions 
for  a  breach  of  a  written  contract  for  the  conditional  sale  of  personal 
property,  and  a  party  having  such  a  cause  of  action  cannot  maintain 
an  action  in  that  court  for  the  conversion  of  such  property  on  the 
ground  that  the  cause  of  action  is  for  "  an  injury  to  property  "  within 


§    1.  JURISDICTION    AND    GENERAL    POWERS.  37 

the  meaning  of  subdivision  14  of  section  1  of  the  act.  Samodwitz  v. 
Karpf,  SO  App.  Div.  496. 

Damages;  breach  of  contract. —  Where  the  evidence  in  an  action  for 
breach  of  contract  to  dye  certain  ribbons  does  not  show  that  they  were 
rendered  absolutely  worthless,  but  only  of  no  value  to  plaintiffs,  a 
judgment  for  damages  for  the  full  amount  of  their  original  value  is 
excessive.     Emmerich  v.  Chegnay,  46  Misc.  Rep.  456. 

Employment  and  wages;  damages. —  An  action  to  recover  damages 
for  a  breach  of  a  contract  of '  employment,  because  of  the  employee's 
wrongful  discharge  before  the  expiration  of  the  term  of  employment,  is 
entirely  distinct  from  an  action  brought  by  the  employee  to  recover 
wages. 

In  the  first-mentioned  form  of  action  it  is  not  necessary  for  the 
employee  to  aver  and  show  affirmatively  that  he  unsuccessfully  sought 
other  employment  or  that  he  stood  in  readiness  to  perform  after  the 
contract  had  been  terminated,  but  the  burden  rests  upon  the  employer 
to  show  that  other  employment  might  have  been  found  or  that  it  had 
been  offered  and  declined.  The  fact  that  the  complaint  in  such  an 
action  demands  money  as  due  rather  than  by  way  of  damages  does 
not  necessarily  render  it  defective. 

When  a  complaint,  although  drawn  by  the  pleader  on  the  theory  of 
an  action  for  wages,  contains  sufficient  allegations  to  warrant  the 
court  in  construing  it  as  one  to  recover  damages  for  breach  of  the  con- 
tract of  employment,  considered.  Allen  V.  Glen  Creamery  Co.,  101  App. 
Div.  306. 

Foreign  corporation,  having  an  office  in  said  city,  as  surety  upon  a 
city  marshal's  bond. —  The  jurisdiction  of  this  court  to  render  judgment 
against  a  foreign  corporation,  having  an  office  in  said  city  and  being 
surety  on  the  bond  of  a  city  marshal,  is  to  be  determined  by  the 
Municipal  Court  Act  (Laws  1902,  chap.  580,  §  1,  subds.  5  and  18)  and 
under  these  subdivisions  when  read  together  there  is  no  jurisdiction 
where  the  plaintiff  claims  more  than  $500.  Section  296  of  said  act 
authorizing  a  justice  of  the  Supreme  Court  to  order  prosecution  in  the 
said  Municipal  Court  of  a  marshal's  bond  —  without  limitation  as  to 
its  amount  —  cannot  aid  the  plaintiff  and  is  to  be  condemned  as  an 
attempt  to  give  such  a  justice  power  to  confer  upon  the  said  Municipal 
Court  jurisdiction  in  such  a  case  beyond  $500.  Frieland  v.  Union  Surety 
Co.,  43  Misc.  Rep.  38. 

Husband  and  wife;  medical  services. —  In  an  action  against  a  hus- 
band for  medical  services  rendered  to  his  wife,  who  is  living  apart  from 
him,  it  is  essential  to  show  that  the  separation  was  due  to  the  husband's 
fault,  and  the  burden  of  such  proof  is  on  the  plaintiff.  Exclusion  of 
evidence  offered  by  the  defendant  to  show  that  there  was  no  cause  for 
his  wife  refusing  to  live  with  him  is  error.  Wolf  v.  Schulman,  45 
Misc.  Rep.  418. 


38  Jurisdiction  and  General  Powers.  §  1. 

Support  of  wife;  when  the  wife  is  liable  for  necessaries;  evidence 
insufficient  to  establish  her  liability;  testimony  given  by  an  adverse 
party;  the  party  calling  his  adversary  as  a  witness  may  controvert 
his  testimony. —  The  common-law  duty  of  a  husband  to  support  his 
family  has  not  been  changed  by  the  legislation  respecting  married 
women,  and  the  liability  for  necessaries  furnished  to  the  family  of  a 
married  man  rests  presumptively  and  primarily  upon  the  husband, 
even  though  the  contract  therefor  is  made  by  the  wife.  Semble,  that 
the  wife  may,  however,  by  express  agreement,  render  herself  personally 
liable  for  necessaries  furnished  to  her  husband  and  family.  What  evi- 
dence is  insufficient  to  sustain  a  finding  of  such  an  express  agreement 
on  the  part  of  a  wife,  considered.  A  party  who  calls  his  adversary  as 
a  witness  is  not  precluded,  under  the  rule  which  prohibits  a  party 
from  impeaching  his  own  witness,  from  showing  by  other  witnesses  the 
existence  of  a  different  state  of  facts  from  that  testified  to  by  his 
adversary.     Ruhl  v.  Heintze,  97  App.  Div.  442. 

Married  woman's  right  of  action  for  wages,  et  cetera. — A  married 
woman  shall  have  a  cause  of  action  in  her  own  sole  and  separate 
right  for  all  wages,  salary,  profits,  compensation  or  other  remunera- 
tion for  which  she  may  render  work,  labor  or  services,  or  which 
may  be  derived  from  any  trade,  business  or  occupation  carried  on  by 
her,  and  her  husband  shall  have  no  right  of  action  therefor  unless  she 
or  he  with  her  knowledge  and  consent  has  otherwise  expressly  agreed 
with  the  person  obligated  to  pay  such  wages,  salary,  profits,  compensa- 
tion or  other  remuneration.  In  any  action  or  proceeding  in  which  a 
married  woman  or  her  husband  shall  seek  to  recover  wages,  salary, 
profits,  compensation  or  other  remuneration  for  which  such  married 
woman  has  rendered  work,  labor,  or  services  or  which  was  derived 
from  any  trade,  business  or  occupation  carried  on  by  her  or  in  which 
the  loss  of  such  wages,  salary,  profits,  compensation  or  other  remunera- 
tion shall  be  an  item  of  damage  claimed  by  a  married  woman  or  her 
husband,  the  presumption  of  law  in  all  such  cases  shall  be  that  such 
married  woman  is  alone  entitled  thereto,  unless  the  contrary  expressly 
appears. 

§  2.  The  foregoing  section  shall  not  affect  any  right,  cause  of  action 
or  defense  existing  before  the  date  when  this  act  shall  take  effect. 
(Laws  1905,  chap.  495,  amending  section  30  of  chap.  272  of  the  Laws 
of  189G,  entitled  "An  act  in  relation  to  the  domestic  relations  law, 
constituting  chap.  48  of  the  General  Laws,"  as  added  by  chap.  289  of 
ihe  Laics  of  1892.) 

When  earnings  belong  to  wife. —  Under  the  acts  relating  to  the 
rights  of  married  women  (L.  1860,  chap.  90,  §  2;  L.  1884,  chap.  381, 
§  1),  the  earnings  of  the  wife  from  services  rendered  to  a  third  party, 
distinct  from  the  common-law  duties  she  owes  her  husband  in  the 
marital  relation,  in  this  case  as  a  nurse  or  attendant,  belong  to  the 


§    1.  JUKISDICTION    AND    GENERAL    PoWEKS.  39 

wife,  and  she,  and  not  he,  is  entitled  to  recover  therefor.  Stevens  v. 
Cunningham,  181  N.  Y.  454,  rev'g  75  App.  Div.  125. 

Evidence  as  to  election  to  labor  on  her  own  account. —  The  fact 
that  a  married  woman  enters  upon  an  independent  employment  which 
she  pursues  openly  for  six  years,  without  protest  or  interference  from 
her  husband,  shows  a  sufficient  election  on  her  part  to  labor  on  her 
own  account  and  thereby  entitled  herself  to  her  earnings.      (Ibid.) 

Presumption  as  to  earnings. —  Section  30  of  chapter  289  of  the  Laws 
of  1902,  an  act  to  amend  the  Domestic  Relations  Law  in  relation  to  a 
married  woman's  right  of  action  for  wages,  etc.,  was  not  oassed  to 
overcome  any  common-law  presumption  that,  notwithstanding  the  pas- 
sage of  the  Married  Woman's  Acts,  the  services  of  the  wife  belonged 
to  her  husband,  but  to  make  clear  the  principle  which  is  to  be  found  in 
many  of  the  decisions  construing  these  statutes  in  the  interest  of 
married  women  and  providing  a  presumption  in  their  favor.      (Ibid.) 

Infancy  as  defense  in  action  for  conversion. —  Infancy  is  a  defense  to 
an  action  for  conversion  because  of  failure  to  return  a  watch  as 
promised.  An  infant  cannot  be  held  on  a  mere  contractual  promise 
by  merely  changing  the  form  of  action  to  one  ex  delicto,  in  a  case  where 
no  actual  appropriation  of  the  property  is  shown.  Stone  V.  Rabinoioitz, 
45  Misc.  Rep.  405. 

Master  and  servant;  what  sickness  of  the  servant  will  justify  the 
master  in  dismissing  him. —  An  employee  engaged  to  render  personal 
services  for  a  specified  period,  who  is,  by  reason  of  sickness,  disabled 
from  completing  his  period  of  service,  may  recover  the  value  of  such 
services  as  he  has  actually  rendered.  Sickness  under  such  circum- 
stances is  to  be  deemed  the  act  of  God.  While,  under  such  a  contract, 
the  employer  is  not  bound  to  wait  an  unreasonable  length  of  time  for 
the  restoration  of  the  servant's  health,  the  illness  which  will  justify 
him  in  dismissing  the  servant  must  be  something  more  than  a  mere 
temporary  malady.  It  must  be  a  serious  sickness,  lasting,  or  likely  to 
last,  so  long  as  to  interfere  substantially  with  the  interests  of  the 
employer.  Thus,  where  the  period  of  the  contract  is  three  months,  the 
illness  of  the  servant  for  a  day  and  a  half  does  not  entitle  the  employer 
to  dismiss  the  servant,  and,  if  he  does  so,  he  renders  himself  liable  to 
an  action  for  a  breach  of  the  contract.  Gaynor  v.  Jonas,  104  App. 
Div.  35. 

Partner;  power  of,  to  borrow  money  and  execute  chattel  mortgage; 
fraud  cannot  be  shown  under  a  general  denial. —  Copartners  are  liable 
for  money  borrowed  by  one  of  them  on  the  firm  credit,  whether  applied 
to  the  firm  business  or  misapplied,  and  to  secure  such  loan  one  partner, 
without  consulting  his  copartner,  can  execute  a  valid  chattel  mortgage 
in  the  firm  name.  Such  transactions  are  within  the  apparent  scope 
cf  copartnership  business.  Semble,  a  partner  defending  the  foreclosure 
of  such  chattel  mortgage  cannot,  under  a  general  denial,  maintain  that 


40  Jurisdiction  and  General  Powers.  §  1. 

the   mortgage    was   executed    pursuant   to   a    scheme   to   defraud    him. 
Weight  of  evidence  considered.     Cohen  v.  Miller,  46  Misc.  Rep.  10G. 

"Personal  injuries"  to  a  passenger  on  a  street  car;  the  action  is  for 
breach  of  contract,  not  for  an  assault. —  The  pleadings  in  an  action 
brought  in  this  court  against  a  street  railroad  company  were  oral. 
The  complaint  was  "  for  personal  injuries."'  and,  as  amplified  by  the 
bill  of  particulars,  alleged  that  the  plaintiff  on  a  certain  day  boarded 
a  car  of  the  defendant  and  tendered  his  fare,  and  that  the  conductor 
refused  to  accept  such  fare  and,  without  cause  or  provocation,  assaulted 
the  plaintiff  and  threw  him  off  the  car,  and  that  by  reason  of  such  mis- 
conduct the  plaintiff  was  injured.  Held,  that  the  cause  of  action  was 
for  breach  of  contract,  and  was  not  for  an  assault  within  the  meaning 
of  section  1364  of  the  Greater  New  York  charter.  A  bill  of  particulars 
is  but  an  amplification  of  the  complaint  and  does  not  operate  to  change 
the  nature  of  the  cause  of  action  set  forth  in  such  complaint.  Hines 
v.  Dry  Dock,  E.  B.  &  B.  R.  R.  Co.,  75  App.  Div.  391. 

(Section  1364  of  the  Charter  is  now  section  1  of  the  Municipal  Court 
Act  (Law.?  1902,  chap.  580),  and  the  reference  is  to  subdivision  1  of 
each  of  these  laws.) 

Physician  or  surgeon  in  the  treatment  of  a  patient;  for  what  he  is 
liable. —  A  physician  and  surgeon  when  treating  a  patient  assumes  two 
obligations,  the  first,  that  he  possesses  the  reasonable  degree  of  learn- 
ing and  skill  which  is  ordinarily  possessed  by  physicians  and  surgeons 
in  the  locality  in  which  he  practices  and  which  is  ordinarily  regarded 
by  those  conversant  with  the  employment  as  necessary  to  qualify  him 
to  engage  in  the  business  of  practicing  medicine  and  surgery ;  the 
second,  that  he  will  use  reasonable  care  and  diligence  in  the  exercise 
of  his  skill  and  the  application  of  his  learning  to  accomplish  the  pur- 
pose for  which  he  was  employed,  and  that  lie  will  use  his  best  judgment 
ir:  exercising  such  skill  and  applying  his  knowledge.  He  is  liable  for 
an  injury  to  his  patient  resulting  from  want  of  the  requisite  knowledge 
and  skill  or  from  his  omission  to  exercise  care  or  his  failure  to  use  his 
best  judgment.  He  is  not  liable  for  a  mere  error  of  judgment  provided 
he  does  what  he  thinks  is  best  after  a  careful  examination.  He  does 
not  guarantee  a  good  result.     MacKenzie  v.  Caman,  103  App.  Div.  246. 

Quasi-contract;  voluntary  payment  made  under  a  mistake  of  law  not 
recoverable;  duress. —  The  jurisdiction  conferred  upon  this  court  by 
its  charter  (Laws  1901,  chap.  466,  §  1364,  subd.  1)  and  thereby  con- 
fined to  an  action  for  breach  of  contract,  express  or  "  implied,"  does 
not  give  that  court  jurisdiction  of  an  action  to  recover  of  the  city  a 
fine  imposed  upon  the  plaintiff  by  a  city  magistrate  who  had  no  juris- 
diction to  impose  the  fine.  If  such  an  action  is  maintainable  it  must 
b  J  upon  the  theory  of  a  ^wast-contraet  and  of  such  an  action  that  court 
has  no  jurisdiction,  and  takes  none  under  the  word  "  implied."  A  vol- 
untary payment  of  a  fine  made  under  a  mistake  of  law  cannot  be 
recovered.     General   allegations  of  duress  are   insufficient  where  there 


§  1.  Jurisdiction  and  General  Powers.  41 

is  no  allegation  or  proof  of  facts  constituting  duress.     Harrington  v. 
City  of  New  York,  40  Misc.  Rep.  165. 

{Section  1304  of  Laws  1901,  chapter  466,  is  now  contained  in  the 
Municipal  Court  Act  (Laics  1902,  chap.  580,  §  1,  subd.  1).) 

Salesman's  contract  for  commissions  and  weekly  drawings  construed. — 
Plaintiff  under  his  contract  with  the  defendant  was  entitled  to  certain 
commissions  and  also  "  to  draw  the  sum  of  fifty  dollars  per  week  for 
his  personal  use,  same  to  be  charged  to  his  commission  account."  In 
an  action  to  recover  two  weekly  drawings,  held,  that  since  no  time 
was  fixed  for  the  payment  of  commissions  they  were  to  be  adjusted  at 
the  end  of  employment,  and  hence  the  right  to  weekly  drawings  accrued 
whether  commissions  had  been  earned  or  not.  Schwerin  v.  Rosen,  45 
Misc.  Rep.  409. 

Same;  services  with  an  association  organized  for  political  and  not  for 
business  purposes,  when  enforceable. —  Though  an  association,  organized 
for  political  and  not  for  business  purposes,  is  not  liable  for  debts  con- 
tracted by  its  agents,  except  when  express  power  to  pledge  its  credit 
is  given,  or  the  fund  for  payment  is  already  provided;  yet  when,  at  the 
time  of  plaintiff's  employment,  the  fund  is  provided  but  is  subsequently 
expended  by  the  association  in  increasing  the  value  of  its  plant,  plain- 
tiff can  recover  because  the  fund,  applicable  to  plaintiff's  payment,  has 
been  added  to  the  property  of  the  association,  and  the  association  by 
accepting  such  plant  accepts  the  burdens  incident  to  the  benefit  con- 
ferred by  the  agent's  acts,  and  thus  ratifies  the  employment.  Eosman 
v.  Kinneally,  45  Misc.  Rep.  411. 

Same;  of  a  traveling  salesman  at  a  weekly  salary;  the  employer  is 
entitled  to  his  exclusive  services;  the  salesman  is  entitled  to  nothing 
during  the  week  in  which  a  breach  occurs  or  thereafter. —  Under  a  writ- 
ten contract,  by  the  terms  of  which  one  of  the  parties  thereto  employs 
the  other  party  as  a  traveling  salesman  at  a  salary  of  $25  per  Week 
and  traveling  expenses,  for  a  term  of  six  months,  the  employer  is 
entitled  to  the  exclusive  services  of  the  employee  during  the  continu- 
ance of  the  contract,  even  in  the  absence  of  any  provision  to  that  effect 
in  the  written  contract  or  of  a  concurrent  or  collateral  agreement  in 
respect  thereto. 

In  the  event  of  a  breach  of  the  contract  by  the  employee  he  cannot 
recover  any  salary  for  the  week  during  which  the  breach  occurred,  nor, 
in  the  absence  of  estoppel  or  waiver,  for  the  rest  of  the  contract  period. 
Seaburn  v.  Zachmann,  99  App.  Div.  218. 

Statute  of  Frauds;  contract  for  manufacture  of  goods;  ratification.— 
Where  a  stranger  purporting  to  act  for  the  defendant  made  an  oral 
contract  with  the  plaintiff  for  the  manufacture  and  delivery  of  castings 
to  the  defendant,  and  the  castings  were  delivered  under  the  contract  to 
the  defendant  and  charged  to  him  by  the  plaintiff,  the  fact  that  the 
defendant  retained  them  in  his  possession  (without  using  them,  how- 
ever)   and  failed  for  more  than  two  months  to  repudiate  the  contract 


42  Jurisdiction  and  General  Powers.  §  1. 

and  to  offer  to  surrender  up  the  castings,  although  the  plaintiff  had 
rendered  statements  charging  him  with  the  contract  price  and  had  on 
several  occasions  demanded  payment  of  the  defendant  and  his  agents, 
is  not  sufficient  to  constitute  a  ratification  of  the  unauthorized  con- 
tract. A  contract  for  the  molding  of  castings  from  patterns  is  not 
one  of  sale,  but  on<  for  the  manufacture  of  goods  not  in  esse;  it  is 
not,  therefore,  within  the  Statute  of  Frauds.  McKenna  v.  Springer, 
N.  Y.  Law  Journal,  March  5,  1904,  Seamax,  J.,  sitting  in  the  twelfth 
district,  Borough  of  Manhattan,  February,   1904. 

Notes  to  section  i,  subdivision  5. 

Foreign  corporation,  having  an  office  in  said  city,  as  surety  upon  a 
city  marshal's  bond. —  The  jurisdiction  of  this  court  to  render  judgment 
against  a  foreign  corporation,  having  an  office  in  said  city  and  being 
surety  on  the  bond  of  a  city  marshal,  is  to  be  determined  by  the 
Municipal  Court  Act  (Laws  1902,  chap.  580,  §  1,  subds.  5  and  18),  and 
under  these  subdivisions,  when  read  together,  there  is  no  jurisdiction 
where  the  plaintiff  claims  more  than  $500.  Section  296  of  said  act 
authorizing  a  justice  of  the  Supreme  Court  to  order  prosecution  in 
the  said  Municipal  Court  of  a  marshal's  bond  —  without  limitation  as 
to  its  amount  —  cannot  aid  the  plaintiff  and  is  to  be  condemned  as  an 
attempt  to  give  such  a  justice  power  to  confer  upon  the  said  Municipal 
Court  jurisdiction  in  such  a  case  beyond  $500.  Frieland  v.  Union 
Surety  Co.,  43  Misc.  Rep.  38. 

Notes  to  section  1,  subdivision  6. 

Person  indebted  to  judgment  debtor. —  An  action  brought  under  sec- 
tion 1391  of  the  Code  of  Civil  Procedure,  as  amended  by  chapter  461 
of  the  Laws  of  1903,  against  a  person  indebted  to  a  judgment  debtor, 
because  of  the  failure  of  such  person  to  satisfy  an  execution  issued 
under  the  said  section  to  the  extent  of  his  obligation  to  the  judgment 
debtor  is  to  be  regarded  as  an  action  upon  the  judgment,  and  hence,  if 
the  judgment  was  recovered  in  the  Supreme  Court,  the  Municipal  Court 
01  the  city  of  New  York  has  not  jurisdiction  thereof.  Such  an  action 
is  not  one  to  foreclose  a  lien  upon  a  chattel,  within  the  meaning  of 
subdivision  10  of  section  1  of  the  Municipal  Court  Act.  A  lien  defined. 
Weissel  v.  Old  Dominion  S.  S.  Co.,  99  App.  Div.  568. 

Notes  to  section  1,  subdivision  7. 

Action  will  lie  for  penalty  although  there  has  been  no  conviction 
for  misdemeanor. —  Such  conviction  is  not  a  condition  precedent  to  the 
maintenance  of  an  action  for  the  recovery  of  a  penalty.  The  result  of 
a  criminal  action  would  be  no  adjudication  in  the  civil  action  under 
section  1481  of  the  charter.  The  City  of  New  York  v.  Williams,  X.  Y. 
Law  Journal,  July  13,  1905,  Joseph,  J.,  seventh  district,  Manhattan. 


§    1.  JURISDICTION    AND    GENERAL    POWEES.  43 

Cabs  standing  in  front  of  hotels  (not  at  hack  stands)  in  the  city  of 
New  York  must  pay  a  license  fee  of  $25  in  addition  to  the  $3  license 
fee. —  Livery-stable-keepers,  doing  business  in  the  city  of  New  York, 
who  make  an  agreement  with  the  proprietor  of  a  hotel  in  that  city  to 
supply  carriages  or  cabs  to  that  hotel  and  who,  with  the  written  con- 
sent of  such  proprietor,  but  without  the  consent  of  the  city,  keep  a 
number  of  cabs  standing  in  front  of  the  hotel  awaiting  passengers, 
must,  in  addition  to  the  license  fee  of  $3  imposed  on  special  hacks  by 
sections  456  and  457  of  the  Revised  Ordinances  of  the  city  of  New  York, 
pay  for  each  of  such  cabs  the  additional  fee  of  $25,  imposed  pursuant 
to  section  12  and  13  of  the  ordinance  approved  May  22,  1899,  upon 
hacks  using,  with  the  written  consent  of  the  owner  or  lessee  of  the 
abutting  premises,  a  public  street  as  a  private  hackstand.  The  enact- 
ment of  the  ordinance  of  May  22,  1899,  was  within  the  power  of  the 
municipal  legislature.     City  of  New  York  v.  Reesing,  77  App.  Div.  417. 

Fire  department;  failure  to  provide  such  means  of  communication 
as  the  fire  commissioner  shall  direct. —  Section  762  of  the  charter  of 
the  city  of  New  York  provides  that  "  the  owners  and  proprietors  of 
*  *  *  hotels  *  *  *  shall  provide  such  means  of  communicating 
alarms  of  fire  *  *  *  as  the  fire  commissioner  *  *  *  may  di- 
rect." No  specific  means  of  communication  was  directed  by  the  order 
of  the  fire  commissioner  given  to  the  defendant.  In  an  action  for  the 
penalty,  held,  that  the  fire  commissioner  must  direct  the  means  of  com- 
munication; that  no  penalty  can  be  recovered  when  the  means  of  com- 
munication is  left  wholly  to  the  conjecture  of  the  defendant;  that  a 
failure  to  comply  with  an  order,  which  is  not  within  the  reasonable 
meaning  of  the  statute,  is  not  grounds  for  action  for  the  penalty. 
Hayes  v.  Brennan,  45  Misc.  Rep.  413. 

Milk  cans,  unlawful  detention  of;  Domestic  Commerce  Law,  section 
29,  as  amended  in  1902. —  In  an  action  to  recover  a  penalty  under 
section  29  of  the  Domestic  Commerce  Law  (L.  1896,  chap.  376,  as 
amended  in  1902),  which  provides  that  "No  person  shall,  without  the 
consent  of  the  owner  or  shipper,  or  his  agent,  use,  sell,  dispose  of,  buy 
or  traffic  in  any  can  irrespective  of  its  condition,  or  the  use  to  which 
it  may  have  been  applied,  belonging  to  any  dealer  in  or  shipper  of 
milk  or  cream  in  this  state,"  the  condition  of  the  can  is  material  and 
where  upon  plaintiff's  proof  before  resting  that  he  found  the  can  in 
question  with  its  top  cut  off  and  full  of  ashes  beside  the  house  of  the 
defendant,  who  said  that  it  was  her  ash  can  and  that  the  ashman 
had  given  it  to  her,  the  court  dismissed  the  complaint,  the  judgment 
entered  in  favor  of  defendant  will  be  reversed  and  a  new  trial 
granted  in  order  that  the  facts  in  regard  to  the  condition  of  the  can 
may  be  more  fully  presented,     ftchmidt  v.  Justus,  46  Misc.  Rep.  459. 

Quasi-contract. —  The  jurisdiction  conferred  upon  this  court  by  the 
charter  (Laws  1901,  chap.  466,  §  1364,  subd.  1)  and  thereby  confined 
to  an  action  for  breach  of  contract,  express  or  "  implied,"  does  not  give 


44  J  UEISDICTI0J5T    AND    GENERAL     POWERS.  §    1. 

the  court  jurisdiction  of  an  action  to  recover  of  the  city  a  fine  imposed 
upon  the  plaintiff  by  a  city  magistrate  who  had  no  jurisdiction  to 
impose  the  fine.  If  such  an  action  is  maintainable  it  must  be  upon 
the  theory  of  a  guasrt-contract,  and  of  such  an  action  the  court  has  no 
jurisdiction  and  takes  none  under  the  word  "implied."  Harrington  v. 
City  of  New  York,  40  Misc.  Rep.  165. 

Railroad  transfers. —  In  an  action  brought  against  a  street  railroad 
company  for  refusing  to  issue  transfers  as  required  by  law,  the  plain- 
tiff may  recover  the  statutory  penalty  for  each  refusal.  Lux  v.  New 
York  City  Ry.  Co.,  45  Misc.  Rep.  223. 

Stock-books. —  For  three  separate  refusals  to  exhibit  stock-books,  as 
required  by  section  29  of  the  Corporation  Stock  Law,  the  defendants 
are  liable  but  for  one  penalty  where  it  is  admitted  that  the  plaintiffs' 
several  demands  for  inspection  were  for  the  purpose  of  getting  certain 
definite  information  once  for  all.  Walcott  V.  Little,  46  Misc.  Rep.  96. 
See  Griffin  v.  Interurban  St.  R.  R.  Co.,  179  N.  Y.  438. 

Tenement-house  repairs. —  An  order  of  the  tenement-house  commis- 
sioner, requiring  the  landlord  of  a  tenement-house  to  make  repairs 
thereon,  is  not  a  lien  or  incumbrance  within  the  meaning  of  a  subse- 
quent conveyance  of  the  property  by  a  short  form  full  covenant  war- 
ranty deed,  free  and  clear  of  all  incumbrances.  Gotland  v.  Bove,  per 
Fallon,  J.,  N.  Y.  Law  Journal,  February  10,  1904. 

Voluntary  payment  of  a  fine  under  a  mistake  of  law  cannot  be  recov- 
ered.    Harrington  v.  City  of  New  York,  40  Misc.  Rep.  165. 

Notes  to  section  i,  subdivision  9. 

Jurisdiction  in  replevin,  how  determined. —  The  jurisdiction  of  this 
court  in  replevin  is  limited  and  determined  solely  by  the  value  of  the 
chattels  ($500)  and  the  fact  that  the  damages  claimed  for  their  de- 
tention exceed  that  sum  does  not  affect  jurisdiction.  Syms  v.  American 
Automobile  Storage  Co.,  43  Misc.  Rep.  395. 

Lost  property. —  Finder  of  articles  lost  in  large  retail  store  is  en- 
titled to  possession  thereof  as  against  the  proprietor  of  the  store.  The 
finder  of  the  property  is  a  voluntary  bailee  for  the  owner,  if  ever  he 
should  come  forward  to  reclaim  it.  An  action  of  replevin  will  lie 
in  favor  of  the  finder  against  any  person  who  detains  possession  from 
him.  White  v.  Daniels,  N.  Y.  Law  Journal,  January  9,  1904, 
Joseph,  J.,  sitting  in  the  seventh  district,  Borough  of  Manhattan. 

Notes  to  section  1,  subdivision  10. 

See  also  notes  to  section  137. 

Artisans'  lien;  dependent  on  continued  possession;  repairs  to  auto- 
mobile; warehouse  lien. —  The  right  of  lien  under  section  70  of  the 
Lien  Law  (Laws  1897,  chap.  418)  for  reasonable  charges  for  work  done 
and  materials  furnished  in  making  repairs  to  personal  property  at  the 


§  1.  Jurisdiction  and  General  Powers.  45 

request  or  with  the  consent  of  the  owner,  is  dependent  upon  the  con- 
tinued possession  of  the  property  by  the  one  claiming  the  lien. 

In  the  absence  of  statutory  provision,  a  garage-keeper  has  no  artisans' 
lien  for  the  amount  due  for  repairs  to  and  supplies  for  an  automobile 
which  the  owner,  during  the  time  it  was  kept  at  the  garage,  had  and 
exercised  the  right  to  use  at  his  pleasure,  nor  has  the  keeper  a  ware- 
house lien  on  the  automobile,  it  not  having  been  "  stored  "  within  the 
meaning  of  section  73  of  the  Lien  Law.  Smith  v.  O'Brien,  46  Misc. 
Rep.  325. 

Boarding-house  keeper. —  The  lien  of  a  boarding-house  keeper  (Laws 
1897,  chap.  418,  §  71,  as  amended  Laws  1899,  chap.  380)  gives  him  no 
lien  on  property  brought  upon  the  premises  by  a  boarder,  nor  any  right 
to  detain  it  for  board,  where  the  legal  right  to  both  the  title  and  pos- 
session of  the  property  were  then  in  another,  and  this  because  the  true 
owner  cannot,  under  the  Constitution,  be  divested  of  his  property  ex- 
cept by  due  process  of  law.     Burnett  v.  Walker,  39  Misc.  Rep.  323. 

Chattel  mortgage;  when  an  action  is  not  upon;  cost  price  when  evi- 
dence of  value. —  This  court  has  jurisdiction  of  an  action  brought  by 
a  chattel  mortgagor  against  the  mortgagee  for  selling  the  mortgaged 
chattels  by  mistake  after  receiving  them  back  from  her  after  default 
and  agreeing  to  keep  them  for  her  until  she  was  financially  able  to  take 
them  again,  as  such  an  action  arises  on  the  bailment  to  keep  the  chattels, 
and  not  on  the  chattel  mortgage,  and  therefore  is  not  within  the"  pro- 
hibition of  section  139  of  the  Municipal  Court  Act  (Laws  1902,  chap. 
580.)  Where  the  identity  of  goods  is  lost,  their  agreed  cost  price  is 
evidence  of  their  value.     Goodman  v.  Baumann,  43  Misc.  Rep.  83. 

Liens  of  hotel,  apartment  hotel,  inn,  boarding  and  lodging  house 
keepers. — A  keeper  of  a  hotel,  apartment  hotel,  inn,  boarding  house  or 
lodging  house,  except  an  emigrant  lodging  house,  has  a  lien  upon,  while 
in  possession,  and  may  detain  the  baggage  and  other  property  brought 
upon  their  premises  by  a  guest,  boarder  or  lodger,  for  the  proper 
charges  due  from  him,  on  account  of  his  accommodation,  board  and 
lodging,  and  such  extras  as  are  furnished  at  his  request.  If  the  keeper 
of  such  hotel,  apartment  hotel,  inn,  boarding  or  lodging  house  knew 
that  the  property  brought  upon  his  premises  was  not,  when  brought, 
legally  in  possession  of  such  guest,  boarder  or  lodger,  or  had  notice  that 
such  property  was  not  then  the  property  of  such  guest,  boarder  or 
lodger,  a  lien  thereon  does  not  exist.  An  apartment  hotel  within  the 
meaning  of  this  section  includes  a  hotel  wherein  apartments  are  rented 
for  fixed  periods  of  time,  either  furnished  or  unfurnished,  to  the  occu- 
pants of  which  the  keeper  of  such  hotel  supplies  food,  if  required.  A 
guest  of  an  apartment  hotel,  within  the  meaning  of  this  section,  in- 
cludes each  and  every  person  who  is  a  member  of  the  family  of  the 
tenant  of  an  apartment  therein,  and  for  whose  support  such  tenant  is 
legally  liable.  (Laics  1905,  chap.  206,  amending  section  71  of  chap.  418 
of  the  Laws  of  1897,  entitled  "An  act  in  relation  to  liens,  constituting 


40  Jurisdiction  and  General   Powers.  §  1. 

chap.  49  of  the  general  laics,"  as  amended  by  chap.  380  of  the  Laics 
of  1899.) 

Notice  of  lien,  contents  of. —  The  notice  of  lien  shall  state: 

1.  The  name  and  residence  of  the  lienor;  and  if  the  lienor  is  a  part- 
nership or  a  corporation,  the  business  address  of  such  firm,  or  corpora- 
tion, the  names  of  partners  and  principal  place  of  business,  and  if  a 
foreign  corporation,  its  principal  place  of  business  within  the  state. 

§  2.  This  act  shall  take  effect  September  first  nineteen  hundred  and 
five.  (Laws  1905,  chap.  96,  amending  subd.  1  of  section  9  of  chap. 
418  of  the  Laws  of  1897,  entitled  "An  act  in  relation  to  liens,  consti- 
tuting chap.  49  of  the  general  laws.")  . 

Person  indebted  to  judgment  debtor. —  An  action  brought  under  sec- 
tion 1391  of  the  Code  of  Civil  Procedure,  as  amended  by  Laws  1903, 
chapter  40 1,  against  a  person  indebted  to  a  judgment  debtor,  because 
of  the  failure  of  such  person  to  satisfy  an  execution  issued  under  the 
said  section  to  the  extent  of  his  obligation  to  the  judgment  debtor,  is 
to  be  regarded  as  an  action  upon  the  judgment,  and  hence,  if  the  judg- 
ment was  recovered  in  the  Supreme  Court,  the  Municipal  Court  of  the 
city  of  New  York  has  no  jurisdiction  thereof.  Such  an  action  is  not 
one  to  foreclose  a  lien  upon  a  chattel  within  the  meaning  of  subdivision 
10  of  section  1  of  the  Municipal  Court  Act.  A  lien  defined.  Weissel  v. 
Old  Dominion  SS.  Co.,  99  App.  Div.  568. 

Public  cartman  in  New  York  city;  when  he  is  not  entitled  to  a  lien 
upon  goods  transported. —  A  public  cartman  in  the  city  of  New  York, 
who  is  employed  to  move  a  quantity  of  household  goods,  is  not,  in  the 
event  of  the  refusal  of  his  employer  to  pay  his  charge  for  transporta- 
tion, entitled  to  a  lien  upon  the  goods  under  the  ordinances  of  the 
city  of  New  York  relating  to  the  liens  of  public  cartmen,  when  it 
appears  that  the  goods  were  injured  in  transit  to  an  amount  in  excess 
of  the  charge  for  cartage,  and  also  that  the  cartman  did  not  convey  the 
property  to  either  of  the  places  specified  in  the  ordinance  or  send  the 
notice  required  by  the  terms  thereof.  Browning  v.  Belford,  83  App. 
Div.  144. 

Stallions;   liens  for  services  of,  amended  by  Laws   1904,  chapter  261. 

Warehouse  lien. —  In  the  absence  of  statutory  provision,  a  garage- 
keeper  has  no  artisan's  lien  for  the  amount  due  for  repairs  to  and  sup- 
plies for  an  automobile  which  the  owner,  during  the  time  it  was  kept 
at  the  garage,  had  and  exercised  the  right  to  use  at  his  pleasure,  nor 
has  the  keeper  a  warehouse  lien  on  the  automobile,  it  not  having  been 
"  stored  "  within  the  meaning  of  section  73  of  the  Lien  Law.  Smith  v. 
O'Brien,  46  Misc.  Rep.  325. 

Notes  to  section  i,  subdivision  12. 

Setting  aside  final  order. —  It  seems,  that  under  subdivision  19  of 
section  1  of  the  Municipal  Court  Act   (Laws  1902,  chap.  580)   a  justice 


§  1.  Jurisdiction  and  General  Powers.  47 

has  power  to  set  aside  a  final  order  in  summary  proceedings  and  to 
grant  a  new  trial.     Stein  v.  Kesselgrab,  45  Misc.  Rep.  652. 

Squatter;  summary  removal  of;  question  of  title;  removal  of  pro- 
ceeding as  in  an  action  not  applicable;  amendment  of  technical  errors 
in  pleading. —  The  fact  that  the  question  of  title  is  raised  collaterally 
in  a  proceeding  instituted  in  the  Municipal  Court  of  the  city  of  New 
York  under  subdivision  4  of  section  2232  of  the  Code  of  Civil  Procedure 
for  the  summary  removal  of  an  alleged  squatter  from  land  claimed 
to  be  owned  by  the  petitioner  does  not  serve  to  oust  the  Municipal 
Court  of  jurisdiction.  The  real  issue  involved  in  the  proceeding  is  as 
to  the  right  to  the  possession  of  the  premises,  and  the  provisions  of  the 
Code  of  Civil  Procedure,  requiring  the  removal  of  an  action  brought  in 
Justice's  or  Municipal  Court,  where  the  determination  of  title  to  real 
estate  is  involved,  have  no  application  to  such  a  proceeding.  Where 
the  denials  contained  in  the  answers  interposed  in  such  a  proceeding 
are  objectionable  in  form  because  of  the  violation  of  a  technical  rule 
of  pleading,  but  are  not  misleading,  the  party  interposing  such  an 
answer  should  be  permitted  to  amend  the  same.  Van  Deventer  v. 
Foster,  87  App.  Div.  62. 

Note. —  The  law  for  removal  of  an  action  was  repealed  by  Laws  1904, 
chap.  598. 

Verification  of  a  petition  by  a  domestic  corporation;  jurisdiction  as- 
sailable for  the  first  time  on  appeal;  defect  in  an  allegation  of  the 
service  of  a  demand  for  rent  or  possession. —  An  agent  of  a  domestic 
corporation  may,  and  an  officer  thereof  need  not,  verify  its  petition  to 
initiate  summary  proceedings  to  dispossess  its  tenant.  (Code  Civ. 
Proc,  §§  525,  subd.  1;  2235.)  A  question  which  affects  the  jurisdiction 
of  this  court  may  be  raised  for  the  first  time  on  an  appeal.  This  court 
dees  not  acquire  jurisdiction  of  such  proceedings  where  the  petition 
therein,  although  stating  that  the  tenant  was  served  with  a  three  days' 
notice  to  pay  rent  or  yield  possession,  "  as  prescribed  in  chapter  17, 
title  2,  section  2240  of  the  Code  of  Civil  Procedure,  for  the  service  of 
a  precept,"  fails  to  state  by  which  of  the  three  methods,  prescribed  in 
said  section,  service  was  made.  Matter  of  Stuyvesant  Real  Estate  Co., 
40  Misc.  Rep.  205. 

Notes  to  section  i,  subdivision  13. 

Horse,  sale  of. —  When  action  is  for  fraud  and  deceit  in  the  sale  of  a 
horse,  recovery  cannot  be  had  for  breach  of  warranty.  Postal  v.  Cohn, 
87  App.  Div.  27.  See  Bunke  v.  N.  Y.  Telephone  Co.,  46  Misc.  Rep. 
97,  98. 

Merchandise  in  bulk  under  Laws  1902,  chapter  528;  fraud  in  the  sale 
of;  attachment;  judgment  by  default;  summons  not  personally  served.— 
A  judgment  cannot  be  rendered  by  default  pursuant  to  section  91  of 
the  New  York  Municipal  Court  Act    (Laws   1902,  chap.  580)    or  sec- 


48  Jurisdiction  and  General  Powers.  §  1. 

tion  2918  of  the  Code  of  Civil  Procedure,  in  an  action  where  the  de- 
fendant has  not  appeared  or  been  personally  served  with  the  summons, 
but  in  which,  however,  his  property  has  been  attached,  unless  it  ap- 
pears that  the  affidavits  upon  which  the  warrant  of  attachment  was 
issued  were  sufficient  to  authorize  it.  On  an  application  for  a  warrant 
of  attachment  on  the  ground  that  the  defendant  has  disposed  of  his 
property  with  intent  to  defraud  his  creditors,  the  burden  of  proving 
the  fraudulent  intent  is  upon  the  party  applying  for  the  writ,  and 
circumstances  which  create  a  strong  suspicion  of  fraud,  but  yet  fall 
short  of  prima  facie  proof  thereof,  are  not  sufficient.  An  averment  in 
the  moving  affidavits  that,  upon  a  sale  by  the  defendant  of  his  entire 
stock  of  merchandise  in  bulk,  the  defendant  and  the  purchaser  did  not 
do  the  things  required  by  chapter  528  of  the  Laws  of  1902,  which  pro- 
vides that  the  sale  of  an  entire  stock  of  merchandise  in  bulk  is  fraudu- 
lent and  void  against  the  creditor  of  the  seller,  unless,  at  least  five  days 
before  the  sale,  the  seller  and  the  purchaser  do  certain  things,  is  in- 
sufficient to  establish  the  violation  of  the  statute  in  question,  where  it 
is  evident  that  the  averment  is  not  based  upon  personal  knowledge,  and 
the  situation  of  the  parties  is  not  such  as  to  create  a  presumption  of 
knowledge  and  no  sources  of  information  are  disclosed.  Semble,  that 
the  fraud,  which,  by  the  Code  of  Civil  Procedure,  is  made  the  ground 
for  an  attachment,  is  an  actual  and  intentional  or  moral  fraud,  and 
not  one  which  is  declared  to  be  such  by  statute  because  of  the  omission 
of  certain  specified  formalities.  Mohlman  Co.  v.  Landwehr,  87  App. 
Div.  83. 

Sale  of  entire  retail  stock  to  one  person;  Laws  1902,  chapter  528, 
construed. —  The  grammatical  construction  of  the  act  is  open  to  criti- 
cism whether  the  legislative  intent  was  to  permit  or  prohibit  the  sale 
of  an  entire  stock  of  merchandise  in  bulk  is  an  open  question.  The 
intent  was  if  a  man  so  sold  his  stock  in  bulk  the  provisions  of  the  act 
relative  to  the  making  of  the  inventory  and  the  notice  by  the  pur- 
chaser should  be  complied  with,  and  there  must  be  proof  of  such 
compliance  before  the  plaintiff  can  recover  on  an  assigned  claim  against 
the  defendant.  This  is  an  action  based  upon  allegations  of  fraud  which 
are  never  presumed  to  be  true,  but  must  always  be  proved  to  be  so. 
The  plaintiff  relies  upon  the  statute  and  must  bring  himself  directly 
within  it. 

The  validity  of  the  act  criticized,  and  an  order  of  arrest  refused. 
Friedland  v.  Wexler,  N.  Y.  Law  Journal,  September  14,  1903,  Bennet, 
J.,  sitting  in  the  seventh  district,  borough  of  Manhattan,  in  August, 
1903.     See  also  Veil  v.  Collins,  39  Misc.  Rep.  40. 

Notes  to  section  1,  subdivision  14. 

Assault  by  street  car  conductor;  not  within  scope  of  employment 
when  parties  have  left  car;  this  court  without  jurisdiction  in  such  action. 
—  The  defendant's  conductor  refused  to  return  plaintiff's  change  after 


§    1.  JURISDICTION    AND    GENERAL    POWERS.  49 

payment  of  fare.  She  left  the  car  before  reaching  her  destination  and 
awaited  on  the  defendant's  premises  the  return  trip  of  the  conductor. 
After  renewed  demands  the  conductor  paid  plaintiff  and  thereafter 
struck  her.  Held,  to  warrant  a  recovery  against  the  defendant  railroad 
company  the  relation  of  carrier  and  passenger  must  exist,  and  this 
relation  was  ended  when  the  plaintiff  voluntarily  left  the  car.  There  is 
a  distinction  between  temporarily  alighting  for  refreshments  from  the 
trains  of  a  railroad  company  where  the  right  to  continue  the  journey 
exists  and  alighting  from  the  car  of  a  street  railway  where  a  new 
fare  must  be  paid  to  continue  the  journey.  Of  this  latter  requirement 
the  court  will  take  judicial  notice.  That  the  conductor,  having  ended 
his  trip  and  left  the  car  at  the  time  of  the  assault,  was  not  engaged  in 
the  performance  of  any  duty  the  defendant  owed  a  passenger,  nor  was 
he  acting  within  the  scope  of  his  authority.  This  court  has  no  juris- 
diction of  such  action.  Reilly  v.  New  York  City  Raihoay  Co.,  46  Misc. 
Rep.  72.     See  also  nines  v.  Dry  Dock,  etc.,  R.  R.  Co.,  75  App.  Div.  391. 

Carrier  of  passengers;  injury  to  the  person  through  negligence  of; 
when  verdict  for  plaintiff  is  properly  set  aside  though  no  evidence  is 
introduced  for  defendant. —  In  an  action  for  damages  for  injury  to 
plaintiff  by  reason  of  negligence  in  starting  a  car,  which  plaintiff  was 
about  to  board,  no  evidence  was  introduced  on  behalf  of  defendant. 
The  plaintiff  testified  that  the  accident  was  on  one  side  of  the  street, 
and  her  friend,  and  only  witness,  testified  that  it  was  on  the  other 
side;  there  was  no  proof  that  a  signal  was  given  by  any  one  for  the 
car  to  stop.  The  plaintiff's  credibility  was  affected  by  the  fact  that 
she  testified  both  that  she  was  in  bed  for  two  weeks  following  the 
accident  and  also  that  she  verified  the  complaint  at  her  lawyer's  office 
nine  days  thereafter.  Held,  no  abuse  of  discretion  in  trial  justice  in 
setting  aside  verdict  for  plaintiff.  Same  holding  in  husband's  action 
for  loss  of  services.  Surkin  v.  Interborough  Street  R.  Co.,  45  Misc. 
Rep.  407. 

Collision;  city  ordinance  giving  right  of  way  to  vehicles  moving  in 
certain  directions  not  to  be  taken  from  consideration  of  jury;  no  re- 
versal if  error  is  in  favor  of  appellant. —  As  an  ordinance  of  the  city 
of  New  York  gives  right  of  way  to  vehicles  moving  north  and  south 
over  those  moving  east,  it  is  error  to  charge  that  vehicles  have  equal 
rights;'  or  when  such  ordinance  is  put  in  evidence  to  take  it  from  the 
consideration  of  the  jury.  But  if  the  charge  be  more  fair  to  plaintiff 
than  he  is  entitled  to  it  is  not  ground  for  reversal  of  judgment  for 
defendant.    Kroder  v.  Interurban  Street  R.  Co.,  46  Misc.  Rep.  118. 

Dog;  damages  for  bite  of;  scienter  must  be  shown. —  Scienter  must  be 
shown  in  an  action  to  recover  damages  for  bite  of  dog.  Classical  and 
modern  precedent  stated.  When  evidence  insufficient  to  establish 
scienter.    Bogodonow  v.  N.  Y.  Lumber  &  Storage  Co.,  46  Misc.  Eep.  120. 

4 


50  Jurisdiction  and  General  Powers.  §  1. 

False  imprisonment;  a  complaint  alleging,  dismissed,  although  it  con- 
tains other  allegations  constituting  a  cause  of  action  within  the  court's 
jurisdiction. —  The  complaint  in  an  action,  brought  in  this  court,  read 
as  follows :  "  The  defendants  are  indebted  to  plaintiff  in  the  sum  of 
Five  hundred  dollars  ($500.00),  in  that  they  co-operated,  inveigled  and 
kidnapped  plaintiff  from  Brooklyn  and  carried  him  to  Yucatan,  Mexico, 
against  his  will,  to  his  loss, 
"  1st.  Loss  of  time  from  March  12,  1903,  to  April  4,  1903,  at 

$2.00  per  day  22  days  $44  00 

"  2nd.  To  expense  while  away,  75c  per  day  22  days 16  50 

"  3rd.  To  passage  from  Yucatan  to  Brooklyn 25  50 

$86  00 
"To  detention,  imprisonment,  loss  of  peace  of  mind 414  00" 


The  Municipal  Court  of  the  city  of  New  York  is  expressly  prohibited 
from  entertaining  jurisdiction  of  an  action  to  recover  damages  for 
false  imprisonment  (Laws  1902,  chap.  580,  §  1,  subd.  14).  Held,  that 
it  was  obvious  from  the  language  of  the  complaint  that  false  imprison- 
ment was  one  of  the  wrongs  for  which  the  plaintiff  sought  to  recover 
damages;  that,  consequently,  the  court  could  not  afford  the  plaintiff 
any  redress,  notwithstanding  the  fact  that  the  complaint  contained 
other  allegations,  which,  if  they  had  stood  alone,  might  have  consti- 
tuted a  cause  of  action  of  which  the  court  had  jurisdiction.  Bellezzire 
v.  Camardella,  95  App.  Div.  176,  177. 

Notes  to  section  i,  subdivision  15. 

Decision  of  another  justice. —  One  judge  cannot,  upon  mere  motion,  set 
aside  the  decision  of  another  judge,  upon  allegations  that  the  latter 
had  erred  as  to  any  of  the  questions  submitted  to  his  determination. 
People  v.  National  Trust  Co.,  31  Hun,  26. 

Order  not  appealable. —  An  older  of  a  justice  of  this  court  denying  a 
motion  to  vacate  an  order  of  arrest  is  not  appealable,  as  such  an  order 
is  not  enumerated  in  the  Municipal  Court  Act  (Laws  1902,  chap.  580, 
§§  253,  254,  255,  256,  257.)  The  scope  of  section  20  of  said  act  con- 
sidered. Leavitt  v.  Katzoff,  43  Misc.  Rep.  26.  See  also  Hyman  v. 
Legal,  44  Misc.  Rep.  226;  Manelly  v.  Mayers,  43  Misc.  Rep.  380,  and 
Smith  v.  Ely,  45  Misc.  Rep.  458. 

"Personal  injuries"  to  a  passenger  on  a  street  car;  action  is  for 
breach  of  contract,  not  for  an  assault. —  The  pleadings  in  an  action 
brought  in  this  court  against  a  street  railroad  company  were  oral. 
The  complaint  was  "  for  personal  injuries,"  and,  as  amplified  by  the 
bill  of  particulars,  alleged  that  the  plaintiff  on  a  certain  day  boarded 
a  car  of  the  defendant  and  tendered  his  fare,  and  that  the  conductor 
refused  to   accept   such   fare  and,   without   cause   or  provocation,   as- 


§    1.  JURISDICTION    AND    GENERAL    Pc-WEES.  51 

saulted  the  plaintiff  and  threw  him  off  the  car,  and  that  by  reason 
of  such  misconduct  the  plaintiff  was  injured.  Held,  that  the  cause  of 
action  was  for  breach  of  contract,  and  was  not  for  an  assault  within 
the  meaning  of  section  1364  of  the  Greater  New  York  charter.  A  bill 
of  particulars  is  but  on  amplification  of  the  complaint,  and  does  not 
operate  to  change  the  nature  of  the  cause  of  action  set  forth  in  such 
complaint.  Bines  v.  Dry  Dock,  E.  B.  &  B.  R.  R.  Co.,  75  App.  Div.  391. 
See  also  Reilly  v.  2V.  Y.  City  Railway  Co.,  46  Misc.  Rep.  72. 

(Section  1364  of  the  charter  is  now  section  1  of  the  Municipal  Court 
Act  (Laics  1902,  chap.  580),  and  the  reference  is  to  subdivision  1  of 
this  law.) 

Notes  to  section  i,  subdivision  18. 

Foreign  corporation,  having  an  office  in  said  city,  as  surety  upon  a 
city  marshal's  bond. —  The  jurisdiction  of  this  court  to  render  judgment 
against  a  foreign  corporation,  having  an  office  in  said  city  and  being 
surety  on  the  bond  of  a  city  marshal,  is  to  be  determined  by  the 
Municipal  Court  Act  (Laws  1902,  chap.  580,  §  1,  subds.  5  and  18),  and 
under  these  subdivisions,  when  read  together,  there  is  no  jurisdiction 
where  the  plaintiff  claims  more  than  $500. 

Section  296  of  said  act,  authorizing  a  justice  of  the  Supreme  Court 
to  order  prosecution  in  the  said  Municipal  Court  of  a  marshal's  bond  — 
without  limitation  as  to  its  amount  —  cannot  aid  the  plaintiff,  and  is 
to  be  condemned  as  an  attempt  to  give  such  a  justice  power  to  confer 
upon  the  said  Municipal  Court  jurisdiction  in  such  a  case  beyond  $500. 
Frieland  v.  Union  Surety  Co.,  43  Misc.  Rep.  38. 

Nonresident  plaintiff  against  a  foreign  corporation  having  a  place 
of  business  in  the  city  of  New  York. —  Jurisdiction  of  an  action  brought 
in  this  court  by  a  nonresident  plaintiff  against  a  foreign  corporation 
having  a  place  in  said  city  for  the  regular  transaction  of  its  business 
is  controlled  by  subdivision  3,  and  not  by  subdivision  2,  of  section  25 
of  the  Municipal  Court  Act  (Laws  1902,  chap.  580),  and  under  sub- 
division 3  is  properly  brought  in  a  district  of  said  city  in  which  the 
defendant  corporation  has  a  place  for  the  regular  transaction  of  a 
portion  of  its  business,  although  it  has  a  general  office  for  the  regular 
transaction  of  its  business  in  another  district  in  said  city.  Goldzier  v. 
Central  R.  R.  of  A7.  J.,  43  Misc.  Rep.  667. 

Proof  necessary  to  recover  against  a  corporation  for  professional 
services  rendered  to  employees. —  To  charge  a  corporation  with  the  value 
of  professional  services  rendered  by  a  physician  to  its  employees  it 
must  be  shown  that  such  services  were  rendered  for  the  benefit  of  the 
corporation,  or  in  satisfaction  of  a  claim  against  it,  or  that  the  officers, 
at  whose  instance  the  services  were  rendered,  had  authority  to  bind 
the  corporation  in  this  respect.  Harris  v.  Vienna  Ice  Cream  Co.,  46 
Misc.  Rep.  125. 


52  Jurisdiction  and  General  Powers.  §  1. 

Notes  to  section  i,  subdivision  19. 

See  also  section  255,  "  New  Trial ;  Fraud,  or  Newly-discovered  Evi- 
dence." 

Decision  of  another  justice. —  One  judge  cannot,  upon  mere  motion,  set 
aside  the  decision  of  another  judge,  upon  allegations  that  the  latter 
had  erred  as  to  am  of  the  questions  submitted  to  his  determination. 
People  v.  National  Trust  Co.,  31  Hun,  26. 

Restoring  case  to  the  calendar. —  Where  certain  cases  in  this  court 
■were  dismissed  for  nonappearance  of  either  party  within  the  time  re- 
quired, the  justice  had  no  authority  to  restore  the  causes  to  the  calen- 
dar and  proceed  to  the  trial  thereof,  except  by  defendant's  express 
consent,  or  by  his  voluntary  appearance,  without  objection  after  service 
of  a  notice  of  motion  on  him  for  reinstatement.  Eichner  v.  Cohen,  91 
N.  Y.  Supp.  357. 

Setting  aside  final  order  in  summary  proceedings. —  It  seems,  that 
under  subdivision  19  of  section  1  of  the  Municipal  Court  Act  (Laws 
1902,  chap.  580)  a  justice  has  power  to  set  aside  a  final  order  in 
summary  proceedings  and  to  grant  a  new  trial.  Stein  v.  Kesselgrub, 
45  Misc.  Rep.  652. 

Stipulation. —  While  the  court  has  power  to  relieve  a  party  from  a 
stipulation,  thoughtlessly  or  improvidently  made  by  hi*  attorney,  it 
is  not  justified  in  exercising  this  power  in  favor  of  a  plaintiff  after 
the  stipulation  has  been  fully  executed  on  the  part  of  the  defendant, 
where  it  does  not  appear  that  the  defendant  was  guilty  of  any  fraud 
or  collusion,  or  that  there  has  been  any  change  in  the  circumstances 
of  the  parties  since  the  stipulation  was  made,  or  that  anything  has 
transpired  which  was  not  foreseen  and  contemplated  bv  the  parties. 
Morris  v.  Press  Publishing  Co.,  98  App.  Div.  143. 

Supplementary  proceedings  on  a  judgment  recovered  in  a  Municipal 
Court,  a  transcript  of  which  was  docketed  in  the  county  clerk's  office; 
the  Supreme  Court*  may  set  them  aside,  but  cannot  vacate  the  judg- 
ment.—  Where  a  transcript  of  a  judgment  recovered  by  default  in  this 
court  for  the  borough  of  Brooklyn  is  docketed  in  the  office  of  the  clerk 
of  the  county  of  Kings,  under  section  1369  of  the  Greater  New  York 
Charter  (Laws  1897,  chap.  378)  and  sections  3017  and  3220  of  the 
Code  of  Civil  Procedure,  and,  after  the  return  of  an  execution  unsatis- 
fied, supplementary  proceedings  are  instituted  thereunder,  the  Su- 
preme Court  is  without  jurisdiction  .to  vacate  the  judgment  on  the 
ground  that  the  judgment  debtor  had  never  been  served  with  the  sum- 
mons and  complaint.  The  Supreme  Court  has  jurisdiction,  however, 
to  stay  or  set  aside  the  execution  and  the  supplementary  proceedings, 
as  these  matters  flowed  out  of  the  filing  of  the  transcript  and  of  the 
docketing  of  the  judgment.  Johnson  v.  Manning,  No.  1,  75  App.  Div. 
285. 

Vacating  void  judgment  not  rendered  in  time. —  Where  a  justice  of 
this  court  renders  judgment  in  a  case  tried  before  him,  which  judgment 


§  2.  No  Jurisdiction  in  Certain  Cases.  53 

is  void  because  it  was  not  rendered  within  the  fourteen  days  prescribed 
by  section  230  of  the  Municipal  Court  Act  (Laws  1902,  chap.  580), 
the  justice  has  power,  under  section  254  of  that  act,  to  make  an  order 
vacating  such  judgment.  Such  order  is  appealable  to  the  Appellate 
Division  under  section  257  of  the  Municipal  Court  Act.  Upon  such  an 
appeal  the  court  is  bound  by  the  contents  of  the  return  made  by  the 
justice  and  cannot  consider  statements  in  the  appellant's  brief,  not 
supported  by  the  return,  tending  to  show  that  the  judgment  was 
rendered  within  the  statutory  time.     Stem  V.  Fleck,  102  App.  Div.  272. 

Vacating  judgment  because  a  material  witness  for  the  defeated  party 
did  not  appear  on  the  trial. —  A  verdict  or  judgment  cannot  be  vacated 
upon  this  ground.     Erichson  v.  Sidlo,  76  App.  Div.  347. 

Weight  of  evidence. —  Under  section  254,  this  court  has  power  to  set 
aside  a  verdict  and  grant  a  new  trial  in  an  action,  on  the  ground  that 
the  verdict  is  against  the  weight  of  evidence.  Newbound  v.  Inlerurban 
Street  R.  R.  Co.,  42  Misc.  Rep.  525. 

Notes  to  section  2,  "  No  Jurisdiction    in  Certain  Cases." 

Amount  involved;  remission  of  excess;  Municipal  Court  Act,  section 
250. —  Where  both  the  summons  and  the  complaint  in  an  action  com- 
menced in  this  court  demand  judgment  for  $500  and  interest,  a  denial 
of  a  motion  to  dismiss  the  complaint  upon  the  ground  of  want  of 
jurisdiction  is  reversible  error.  The  provision  of  section  250  of  the 
Municipal  Court  Act  permitting  a  party  to  remit  the  excess  if  the 
sum  found  due  "  exceeds  the  sum  for  which  the  court  is  authorized  to 
enter  judgment "  applies  only  to  cases  where  said  court  has  acquired 
jurisdiction  in  the  first  instance.     Smith  v.  Dunn,  46  Misc.  Rep.  475. 

Assault  by  street  car  conductor;  not  within  scope  of  employment 
when  parties  have  left  car;  this  court  without  jurisdiction  in  such 
action.—  The  defendant's  conductor  refused  to  return  plaintiff's  change 
after  payment  of  fare.  She  left  the  car  before  reaching  her  destina- 
tion and  awaited  on  the  defendant's  premises  the  return  trip  of  the 
conductor.  After  renewed  demands  the  conductor  paid  plaintiff  and 
thereafter  struck  her.  Held,  to  warrant  a  recovery  against  the  de- 
fendant railroad  company  the  relation  of  carrier  and  passenger  must 
exist,  and  this  relation  was  ended  when  the  plaintiff  voluntarily  left 
the  car.  There  is  a  distinction  between  temporarily  alighting  for 
refreshments  from  the  trains  of  a  railroad  company  where  the  right 
to  continue  the  journey  exists  and  alighting  from  the  car  of  a  street 
railway  where  a  new  fare  must  be  paid  to  continue  the  journey.  On 
this  latter  requirement  the  court  will  take  judicial  notice.  That  the 
conductor,  having  ended  his  trip  and  left  the  car  at  the  time  of  the 
assault,  was  not  engaged  in  the  performance  of  any  duty  the  defend- 
ant owed  a  passenger,  nor  was  he  acting  within  the  scope  of  his  author- 
ity.    This  court  has  no  jurisdiction  of  such  action.     Reilly  v.   New 


54 


Xo  Jurisdiction  in  Certain  Cases. 


§  2. 


York  City  Railway  Co.,  46  Misc.  Eep.  72.  See  also  Hincs  v.  Dry  Dock, 
etc.,  R.  R.  Co.,  75  App.  Div.  391. 

Decision  of  another  justice. —  One  judge  cannot,  upon  mere  motion, 
set  aside  the  decision  of  another  judge,  upon  allegations  that  the  latter 
had  erred  as  to  any  of  the  questions  submitted  to  his  determination. 
People  v.  National  Trust  Co.,  31  Hun,  26.  See  exception  to  this  rule. 
Siremberg  v.  Di  Salvo,  38  Misc.  Rep.  139. 

Equity  jurisdiction;  reformation  of  written  instrument;  action  for 
use  and  occupation;  parol  evidence  to  add  to  lease. —  The  reforma- 
tion of  a  written  instrument  is  not  within  the  jurisdiction  of  this 
court,  and  in  an  action  to  recover  for  use  and  occupation,  a  denial  of 
a  motion  to  strike  out  a  separate  defense,  setting  up  the  existence  of 
a  written  lease  of  a  basement  and  alleging  that  through  inadvertence 
the  word  "  cellar  "  had  been  omitted  therefrom  contrary  to  the  inten- 
tion of  both  parties,  is  erroneous,  and  oral  evidence  that  the  lease  was 
intended  to  include  the  cellar  is  inadmissible.  Kraus  v.  Smolen,  46 
Misc.  Rep.  463. 

Fictitious  name;  when  the  judgment  is  fatally  defective  and  an  exe- 
cution issued  thereon  is  void. —  The  summons  in  an  action  brought  in 
the  Municipal  Court  of  the  city  of  New  York  was  entitled  as  follows: 


"  Mart  Mabkowitz,  Plaintiff, 

against 

Etta  Lipsky  and  John  Goldbebg, 

Defendant. 


Free  summons. 

First  names  being  fictitious,  un- 
known to  plaintiff." 


The  certificate  of  service  recited  that  the  marshal  served  the  sum- 
mons "  on  John  Goldberg,  one  of  the  within  named  defendants  *  *  * 
and  that  I  know  the  person  to  be  one  of  the  defendants  therein  named." 

The  docket,  under  the  title  "  Markowitz  against  Lipsky  et  al.,"  re- 
cited that  the  plaintiff  appeared  in  person  and  that  the  complaint  was 
for  goods  sold  and  delivered;  that  the  defendant  appeared  in  person, 
and  that  judgment  was  rendered  for  twenty  dollars  and  twenty-five 
cents  damages  and  one  dollar  costs.  The  record  did  not  show  for  or 
against  whom  the  judgment  had  been  rendered,  or  that  Goldberg  was 
a  party  to  the  action  or  appeared  therein.  An  execution  was  then 
issued  directing  the  marshal  to  collect  the  amount  due  out  of  "  the 
separate  property  of  the  judgment  debtor,  John  Goldberg,  first  name 
fictitious,  real  name  unknown  to  plaintiff."  This  execution  was  levied 
upon  property  belonging  to  Nathan  M.  Goldberg,  who  was  one  of  the 
persons  upon  whom  the  summons  in  the  action  was  served,  and  who 
appeared  in  answer  to  the  summons. 

In  an  action  brought  by  Nathan  M.  Goldberg  against  Markowitz  and 
the  marshal  who  levied  the  execution  to  recover  damages  for  the  al- 
leged  conversion   of  the   property  levied  upon,   it  was  held   that   the 


§  2.  No  Jurisdiction  in  Certain  Cases.  55 

record  of  the  judgment  was  fatally  defective,  and  that  the  execution 
issued  thereon  was  void  upon  its  face  and  constituted  no  protection 
to  the  marshal  or  to  any  one  acting  under  it;  that  the  docket  did 
not  show  upon  its  face  that  any  judgment  had  been  rendered  in  favor 
of  the  plaintiff  against  the  defendant.  That  as  Lipsky  was  the  only 
defendant  named  in  the  record,  there  was  no  presumption  that  the 
proceeding  was  against  any  one  but  Lipsky.  Goldberg  v.  Markoioitz, 
94  App.  Div.  237,   238. 

Interpleader,  when  permitted. —  The  Municipal  Court  Act,  section  187, 
permits  an  interpleader  only  in  an  action  on  contract,  or  to  recover 
a  chattel ;  hence,  where  a  defendant  has  been  interpleaded  in  an  action 
for  conversion  and  the  original  defendant  is  released  by  plaintiff,  the 
court  is  ousted  as  to  jurisdiction  as  to  both.  Semble,  an  assignment 
cannot  be  attacked  on  the  ground  of  fraud  under  a  general  denial. 
Midler  v.  Lese,  45  Misc.  Rep.  638. 

Jurisdiction  is  lost  by  the  justice  unless  he  files  his  decision  within 
fourteen  days.  Van  Valis  V.  Charonca,  40  Misc.  Rep.  226.  See  also 
Penniman  v.  La  Grange,  23  Misc.  Rep.  226;  Wallace  v.  Harris,  40 
Misc.  Rep.  216;  Lambert  v.  Salomon,  28  App.  Div.  562. 

Person  indebted  to  judgment  debtor. —  An  action  brought  under  sec- 
tion 1391  of  the  Code  of  Civil  Procedure,  as  amended  by  chapter  46 
of  the  Laws  of  1903,  against  a  person  indebted  to  a  judgment  debtor, 
because  of  the  failure  of  such  person  to  satisfy  an  execution  issued 
under  the  said  section  to  the  extent  of  his  obligation  to  the  judgment 
debtor,  is  to  be  regarded  as  an  action  upon  the  judgment,  and  hence, 
if  the  judgment  was  recovered  in  the  Supreme  Court  the  Municipal 
Court  of  the  city  of  New  York  has  not  jurisdiction  thereof. 

Such  an  action  is  not  one  to  foreclose  a  lien  upon  a  chattel,  within 
the  meaning  of  subdivision  10  of  section  1  of  the  Municipal  Court  Act. 

A  lien  denned.     Weisel  v.  Old  Dominion  SS.  Co.,  99  App.  Div.  568. 

Quasi-contract;  voluntary  payment  made  under  a  mistake  of  law 
not  recoverable;  duress. —  The  jurisdiction  conferred  upon  this  court  by 
the  charter  (Laws  1901,  chap.  466,  §  1364,  subd.  1)  and  thereby  confined 
to  an  action  for  breach  of  contract,  express  or  "  implied,"  does  not 
give  the  court  jurisdiction  of  an  action  to  recover  of  the  city  a  fine 
imposed  upon  the  plaintiff  by  a  city  magistrate  who  had  no  jurisdiction 
to  impose  the  fine.  If  such  an  action  is  maintainable  it  must  be  upon 
the  theory  of  a  g-wast-contract  and  of  such  an  action  the  court  has  no 
jurisdiction  and  takes  none  under  the  word  "  implied."  A  voluntary 
payment  of  a  fine  made  under  a  mistake  of  law  cannot  be  recovered. 
General  allegations  of  duress  are  insufficient  where  there  is  no  allega- 
tion or  proof  of  facts  constituting  duress.  Harrington  v.  City  of  ~New 
York,  40  Misc.  Rep.   165. 

Squatter;  summary  removal  of,  from  land;  question  of  title;  removal 
of  proceeding  as  in  an  action  not  applicable;  amendment  of  technical 
errors  in  pleading. —  The  fact  that  the  question  of  title  is  raised  col- 


56  No  Jurisdiction  in  Certain  Cases.  §  2. 

laterally  in  a  proceeding  instituted  in  the  Municipal  Court  of  the  city 
of  New  York  under  subdivision  4  of  section  2232  of  the  Code  of  Civil 
Procedure  for  the  summary  removal  of  an  alleged  squatter  from  land 
claimed  to  be  owned  by  the  petitioner  does  not  serve  to  oust  the 
Municipal  Court  of  jurisdiction.  The  real  issue  involved  in  the  pro- 
ceeding is  as  to  the  right  to  the  possession  of  the  premises,  and  the 
provisions  of  the  Code  of  Civil  Procedure  requiring  the  removal  of  an 
action  brought  in  a  Justice's  or  Municipal  Court,  where  the  determina- 
tion of  title  to  real  estate  is  involved,  have  no  application  to  such  a 
proceeding.  Where  the  denials  contained  in  the  answers  interposed  in 
such  a  proceeding  are  objectionable  in  form  because  of  the  violation 
of  a  technical  rule  of  pleading  but  are  not  misleading,  the  party  inter- 
posing such  an  answer  should  be  permitted  to  amend  the  same.  Van 
Deventer  v.  Foster,  87  App.  Div.  62. 

Note. —  The  law  for  removal  of  an  action  was  repealed  by  Laws 
1904,  chap.   598. 

Surety  upon  a  city  marshal's  bond  by  a  foreign  corporation. —  The 
jurisdiction  of  this  court  to  render  judgment  against  a  foreign  corpo- 
ration, having  an  office  in  said  city  and  being  surety  upon  the  bond 
of  a  city  marshal,  is  to  be  determined  by  the  Municipal  Court  Act  (Laws 
1902,  chap.  580,  §  1,  subds.  5,  18),  and  under  these  subdivisions,  when 
read  together,  there  is  no  jurisdiction  where  the  plaintiff  claims  more 
than  $500.  Section  296  of  said  act,  authorizing  a  justice  of  the  Su- 
preme Court  to  order  prosecution  in  the  Municipal  Court  of  a  mar- 
shal's bond,  without  limitation  as  to  its  amount,  cannot  aid  the  plain- 
tiff and  is  to  be  condemned  as  an  attempt  to  give  such  justice  power 
to  confer  upon  said  court  jurisdiction  beyond  $500.  Frieland  v.  Union 
Surety  Co.,  43  Misc.  Rep.  38. 

§  3.  Removal. —  (This  section  lias  been  repealed  by  Laws 
1904,  chapter  598,  section  1,  having  the  remarkable  title,  "An 
Act  to  amend  the  Municipal  Court  Act  of  the  City  of  New 
York  with  reference  to  rules  of  court  and  appeals,"  and  is  as 
follows : ) 

Section  1.  Section  three  of  the  municipal  court  act  of  the 
city  of  New  York  is  hereby  repealed,  but  the  repeal  of  such 
section  shall  not  affect  the  prosecution  of  any  action  hereto- 
fore removed  from  said  municipal  court  of  the  city  of  New 
York  pursuant  to  the  provisions  of  such  section,  and  all  pro- 
ceedings in  such  actions  shall  be  continued  as  though  said 
section  were*  still  in  force  and  effect. 

*  So  in  original.     It  should  be  "  was." 


§  12.  Board  to  Make  Rules.  57 

Note  to  sections  4,  5,  6,  7,  and  8,  "  Contempt  of  Court." 

Court  order. —  A  court  order  should  have  a  caption  reciting  the  time, 
place,  and  term  of  court.  A  judge's  order,  however,  is  not  vitiated 
because  it  contains  such  a  caption,  as  the  caption  may  be  treated  as 
surplusage.  The  body  of  an  order  may  be  examined  for  the  purpose 
of  determining  whether  it  was  made  by  a  court  or  a  judge.  Matter  of 
Munson,  95  App.  Div.  23. 

§  11.  Board  of  justices — The  justices  of  said  court  shall 
constitute  the  board  of  justices  of  the  municipal  court  and 
discharge  the  functions  thereof.  They  may  elect  a  president 
from  their  own  number  and  at  pleasure  remove  him  and 
elect  a  successor.  All  meetings  of  said  board  shall  be  public 
and  all  proceedings  shall  be  recorded  in  its  books  of  minutes, 
by  its  secretary  and  shall  be  preserved.  Such  board  may 
designate  a  clerk  of  said  court  for  one  of  said  districts  to 
act  as  secretary  of  said  board,  and  from  time  to  time  sub- 
stitute another  and  fix  a  compensation  to  be  paid  for  such 
service,  not  exceeding  the  sum  of  five  hundred  dollars  per 
annum.  Such  board  may  also  designate  an  attendant  of  such 
court  to  act  as  attendant  of  said  board,  and  from  time  to  time 
substitute  another,  and  fix  a  reasonable  compensation  to  be 
paid  for  such  service.  Such  board  shall  establish  public 
rules  relative  to  its  meetings,  which  as  far  as  possible  shall 
be  held  at  regular  times,  to  the  keeping  and  preservation  of 
its  minutes  and  to  the  public  inspection  of  the  same  under  the 
care  of  the  secretary  at  reasonable  times.  (As  amended  by 
Laws  1904,  chap.  735,  passed  May  14,  1904.) 

§  12.  Board  to  make  rules. 

Subdivision  6  added,  which  reads  as  follows: 

6.  As  to  a  calendar  in  each  district  of  actions  reserved  gen- 
erally, to  which  actions  may  be  transferred  notwithstanding 
the  provisions  of  section*  one  hundred  and  ninety-three  and 
one  hundred  and  ninety-four  of  this  act.  ( This  is  a  new  sub- 
division added  by  Laws  1903,  chap.  282,  in  effect  April  27, 
1903.) 

*  So  in  original.     Should  be  "  sections." 


58  Board  to  Make  Rules.  §  12. 

7.  As  to  the  justices  who  shall  hold  sessions  of  said  court 
in  each  of  the  districts  at  times  and  places  to  be  specified  in 
said  rules,  which  sessions  shall  begin  at  nine  o'clock  in  the 
forenoon,  and  to  provide  for  such  a  rotation  of  the  justices 
holding  the  same  as  that  each  justice  after  holding  court  in 
his  own  district  for  one  month  shall  sit  in  at  least  five  of  such 
other  districts,  at  least  once  for  a  period  of  one  month  at  a 
time  previous  to  his  return  to  the  district  for  which  he  shall 
have  been  elected  or  appointed,  provided  that  the  justices 
elected  or  appointed  for  any  borough  shall  hold  court  in  such 
borough,  but  if  a  vacancy  exists,  or  the  illness  or  other  in- 
ability of  any  justice  assigned  to  hold  court  prevents  his 
attendance,  any  other  justice  of  said  court  may  hold  the  same. 
Such  rules  respecting  rotation  and  the  designation  of  justices, 
shall  be  made  on  or  before  the  first  Monday  of  December  in 
each  year,  and  shall  be  published  in  the  Xew  York  law 
journal,  and  one  newspaper  published  in  each  borough  at 
least  once  before  the  first  day  of  January  following  and  shall 
go  into  effect  on  such  latter  day.  (This  is  a  subdivision 
added  by  Laivs  1904,  chap.  598.) 

Notes  to  section  12. 

Section  193  of  this  act,  referred  to,  relates  to  "adjournments;  trial 
may  be  adjourned;  when."  And  section  194  "adjournments  longer  than 
eight  days;  undertaking." 

Pursuant  to  section  12,  and  as  amended  by  chapter  282,  Laws  1903, 
and  by  chapter  598,  Laws  1904,  the  board  of  justices  adopted  the 
following: 

Rules  of  Practice. 

I.  Court  shall  be  held  in  each  district  on  Monday,  Tues- 
day, Wednesday,  Thursday  and  Friday  of  each  week,  except 
in  those  districts  where  the  justice  elected  or  appointed 
therein  shall  otherwise  direct. 

II.  Court  shall  be  opened  at  9  o'clock  a.  m.  and  close  at 
4  o'clock  p.  m.  During  months  of  July  and  August  from 
9  a.  m.  until  12  m. 


§  12.  Board  to  Make  Rules.  59 

III.  The  order  of  business  in  each  court  shall  be  as  follows : 

1.  Summary  proceedings. 

2.  Adjourned  causes. 

3.  Returned  causes. 

4.  Inquests. 

5.  Motions. 

6.  Trials. 

IV.  To  entitle  a  cause  to  a  place  on  the  calendar,  the 
summons  must  be  returned  with  proof  of  service  thereof  to 
the  clerk's  office,  and  the  calendar  fee  paid  the  day  before  the 
return  day  of  the  summons. 

V.  Where  a  plaintiff  appears  by  attorney,  the  summons, 
unless  a  complaint  is  filed  therewith,  shall  be  indorsed  with 
the  name  and  address  of  the  attorney  for  the  plaintiff  and  a 
brief  statement  of  the  cause  of  action.  Such  indorsement 
shall  be  deemed  an  appearance  within  section  332  of  the 
Municipal  Court  Act.  Other  process,  pleadings  and  writ- 
ings shall  also  be  appropriately  indorsed. 

VI.  When  a  bill  of  particulars  is  ordered  the  same  shall 
be  filed  in  the  clerk's  office  within  three  days  after  such  order 
is  made. 

VII.  When  a  jury  is  demanded,  the  jury  fee  shall  be  forth- 
with paid  to  the  clerk  of  the  court  by  the  attorney,  or  party 
making  such  demand.  The  jury  shall  be  publicly  drawn  by 
the  clerk  from  the  panel  under  the  supervision  of  the  justice. 
Each  additional  venire  requires  an  additional  jury  fee,  but 
only  the  fee  originally  paid  can  be  included  as  part  of  the 
costs  in  the  judgment  under  section  238  of  the  Municipal 
Court  Act. 

VIII.  If  the  original  summons,  or  other  process,  or  man- 
date of  the  court  is  not  returned  to  the  office  of  the  clerk  the 
court  may  indorse  a  dismissal  of  the  action  or  proceeding 
upon  the  copy  of  such  summons,  mandate  or  process,  or  grant 
other  appropriate  relief,  and  award  costs  in  proper  cases,  and 
such  copy,  summons,  mandate,  or  process  with  such  indorse- 
ment shall  thereupon  be  filed  with  the  clerk  of  the  court,  and 
shall  have  the  same  effect  as  if  the  original  had  been  so  in- 


60  Board  to  Make  Rules.  §  12. 

dorsed  and  filed,  provided  proof  of  service  is  made  or  written 
notice  of  appearance  by  an  attorney  is  filed. 

IX.  Upon  an  application  for  an  order  removing  an  action 
to  the  City  Court,  County  Court,  or  Supreme  Court,  as  the 
case  may  be,  the  sureties  upon  the  undertaking  must  attend 
mid  justify  as  to  their  sufficiency  on  the  day  of  the  presenta- 
tion of  the  undertaking  unless  such  justification  is  waived  or 
adjourned  by  the  court  or  by  consent,  or  the  undertaking  is 
given  by  a  duly  authorized  surety  company. 

X.  The  clerk  shall  not  place  a  cause  upon  the  calendar  for 
trial  on  a  day  agreed  upon  in  a  stipulation  unless  such 
stipulation  is  approved  by  the  justice  in  the  district  in  which 
the  action  is  pending. 

XI.  Causes  set  down  for  trial  must  be  tried  when  reached 
unless  legal  grounds  exist  for  an  adjournment. 

XII.  Only  one  adjournment  shall  be  granted  in  actions  in 
which  the  amount  claimed  in  the  summons  does  not  exceed 
$50,  unless  the  justice  for  good  cause  shown  shall  otherwise 
direct. 

XIII.  Calendar  or  other  fees  paid  to  the  clerk  are  in  no 
case  to  be  returned. 

XIV.  Motions  may  be  brought  on  for  hearing  on  not  less 
than  three  days'  notice  unless  otherwise  provided  by  law. 

XV.  Ex  parte  applications  may  be  made  to  any  justice 
without  regard  to  the  district  in  which  the  action  or  proceed- 
ing is  pending,  or  about  to  be  commenced ;  the  affidavit  shall 
however  state  whether  any  previous  application  has  been 
made,  and  if  made,  to  what  justice,  and  what  order  or  de- 
cision was  made  thereon,  and  what  new  facts,  if  any,  are 
claimed  to  be  shown.  It  shall  also  state  the  residences  of  the 
parties.  For  failure  to  comply  with  this  rule  any  order 
made  on  such  application  may  be  revoked  or  set  aside.  The 
denial  of  an  ex  parte  application  with  the  reason  therefor 
may  be  endorsed  thereon  by  the  justice  to  whom  the  same 
is  presented. 

XVI.  Xo  approval  of  an  undertaking  given  by  a  party  or 
claimant  to  procure  the  discharge  of  a  levy  under  an  attach- 
ment shall  be  granted  ex  parte.     The  party  or  claimant  ap- 


§  12.  Board  to  Make  Rules.  61 

plying  for  such  approval  shall  give  at  least  two  days'  notice 
of  justification  to  the  adverse  party. 

XVII.  A  stipulation  to  extend  the  time  of  the  court 
"within  which  to  render  a  judgment  or  make  a  decision  may 
be  entered  into  between  parties  or  their  attorneys  on  the 
record  in  the  minutes  of  a  trial,  or  in  a  written  stipulation 
signed  to  that  effect. 

XVIII.  Affidavits  of  service  of  process  must  in  all  cases 
comply  strictly  with  the  provisions  of  Rule  XVIII  of  the 
Supreme  Court  rules. 

XIX.  Costs  shall  not  be  awarded  to  a  defendant  who  ap- 
pears by  attorney  when  there  are  no  verified  pleadings,  unless 
a  written  notice  of  appearance  is  filed. 

XX.  The  phrase  "  case  on  appeal "  in  sections  317  and 
31:8  of  the  Municipal  Court  Act  shall  be  deemed  to  refer 
simply  to  the  justice's  return  on  appeal  as  the  same  has  been 
heretofore  known.  The  phrase  "  including  the  evidence  " 
shall  be  deemed  to  include  all  exhibits  admitted  in  evidence. 

XXI.  In  cases  where  attorneys  may  be  represented  by 
clerks,  the  clerk  or  clerks  so  appearing  shall  be  only  those 
whose  certificates  of  clerkship  shall  have  been  filed  in  the 
office  of  the  clerk  of  the  Court  of  Appeals. 

XXII.  When  a  cause  has  been  adjourned  more  than  three 
times,  by  consent  or  stipulation,  the  court  may  of  its  own 
motion  place  it  upon  the  calendar  of  causes  Reserved 
Generally.  It  may  be  restored  on  three  days'  notice  and 
placed  upon  the  calendar  for  trial  for  a  day  subsequent. 
Parties  may  at  any  time  consent  to  take  a  cause  from  the  day 
calendar  and  place  it  upon  the  calendar  of  causes  Reserved 
Generally. 

Rules  Relative  to  Clerks  and  Attendants. 

I.  The  clerk,  assistant  clerk,  interpreter  and  attendants  of 
each  court  shall  attend  each  day  from  9  o'clock  a.  m.  to 
4  o'clock  p.  m.,  and  at  such  other  times  as  the  justice  may 
direct,  except  as  otherwise  provided  by  law.  The  stenog- 
rapher shall  be  in  attendance  during  the  sessions  of  the  court, 
and  at  such  other  times  and  places  as  the  justice  may  direct. 


62  Board  to  Make  Rules.  §  12. 

II.  The  attendants  shall  maintain  order  in  and  about  the 
court  and  the  offices  thereof. 

III.  The  attendants  and  interpreter  shall  wear  an  official 
badge  during  the  session  of  the  court. 

IV.  During  the  session  of  the  court  the  clerk  thereof,  or, 
in  his  absence,  the  assistant  clerk,  shall  be  in  attendance 
therein,  administer  oaths,  keep  minutes  and  receive  the  ver- 
dict of  a  jury,  and  when  not  so  employed  the  time  of  the 
clerk  and  assistant  clerk  shall  be  devoted  to  the  business  of 
the  clerk's  office. 

V.  The  clerk  of  each  court,  or,  in  his  absence,  the  assistant 
clerk,  shall,  on  or  before  the  third  day  of  each  month,  make  a 
statement  in  writing,  duly  verified  by  his  oath,  of  moneys 
received  for  fees  by  him,  as  such  clerk,  during  the  preceding 
month,  and  on  or  before  the  day  named  pay  in  to  the  finance 
department  of  The  City  of  New  York  all  such  moneys  re- 
ceived by  him  for  the  use,  or  on  behalf  of  the  city,  for  the 
preceding  month  as  required  by  law.  A  summary  thereof 
shall  thereupon  be  filed  with  the  secretary  of  the  board  of 
justices,  together  with  a  detailed  statement  of  the  business 
of  the  court  for  the  previous  month. 

VI.  The  clerks  and  assistant  clerks  shall  keep  and  preserve 
full,  correct  and  true  records  of  the  proceedings  of  the  court 
and  of  their  office,  properly  file  and  preserve  all  process, 
pleadings,  mandates  or  other  papers,  deposit  in  bank  all 
moneys  paid  to  them,  keep  accurate  accounts  thereof,  and 
shall  faithfully  perform  the  duties  imposed  upon  them  by 
chapter  580  of  the  Laws  of  1902. 

VII.  When  moneys  are  paid  to  persons  other  than  parties 
or  their  attorneys  the  clerks  shall  require  and  file  in  their 
offices  a  written  request  from  the  party  or  the  attorney  en- 
titled to  such  moneys  to  authorize  such  payment,  and  a 
receipt  therefor. 

Notes  to  section  12. 

Force  of  rules. —  Rules  enacted  by  the  board  of  justices  of  the 
Municipal  Court,  pursuant  to  section  12  of  the  Municipal  Court  Act 
(Laws  1902,  chap.  580)  have  the  force  of  law  and  are  binding  upon 
the  individual  justices.     Matter  of  Bolte,  97  App.  Div.  551,  552. 


§  12.  Board  to  Make  Kules.  63 

Notes  to  section  12,  subdivision  6. 

Case  stricken  from  calendar  cannot  be  restored  except  by  consent. — 
A  cause  stricken  from  the  calendar  of  the  Municipal  Court  of  New 
York,  for  failure  of  plaintiff  to  appear,  cannot  be  restored  to  such 
calendar  except  by  consent  of  defendant  or  by  his  voluntary  appearance. 

Where  certain  cases  in  this  court  were  dismissed  for  nonappearance 
of  either  party  within  the  time  required,  the  justice  had  no  authority 
to  restore  the  causes  to  the  calendar  and  proceed  to  the  trial  thereof, 
except  by  defendant's  express  consent,  or  by  his  voluntary  appearance 
without  objection  after  service  of  a  notice  of  motion  on  him  for  rein- 
statement. Eichner  v.  Cohen,  46  Misc.  Rep.  126;  S.  C,  91  N.  Y.  Supp. 
357. 

Notes  to  section  12,  subdivision  9. 

The  law  for  the  removal  of  an  action  was  repealed  by  Laws  1904, 
chap.   598. 

Notes  to  rule  15. 

Ex  parte  applications. —  Rule  15,  which  provides  that  ex  parte  ap- 
plications may  be  made  to  any  justice,  only  authorizes  applications  in 
actions  pending  in  one  district  to  a  justice  of  another  district  for  such 
orders  as  may  be  granted  by  a  justice  as  distinguished  from  the  court. 
Matter  of  Bolte,  97  App.  Div.  551,  552. 

Court  order. —  A  court  order  should  have  a  caption  reciting  the  time, 
place,  and  term  of  court.  A  judge's  order,  however,  is  not  vitiated 
because  it  contains  such  a  caption,  as  the  caption  may  be  treated  as 
surplusage.  The  body  of  an  order  may  be  examined  for  the  purpose 
of  determining  whether  it  was  made  by  a  court  or  a  judge.  Matter  of 
Munson,  95  App.  Div.  23. 

Decision  of  another  justice. —  One  judge  cannot,  upon  mere  motion, 
set  aside  the  decision  of  another  judge,  upon  allegations  that  the  latter 
had  erred  as  to  any  of  the  questions  submitted  to  his  determination. 
People  v.  National  Trust  Co.,  31  Hun,  26.  See  exception  to  this  rule, 
Stromberg  v.  Di  Salvo,  38  Misc.  Rep.  139. 

Notes  to  section  13,  "  Court  by  Whom  Held." 

The  requirement  that  a  justice  who  is  disqualified  to  try  a  cause,  to 
transfer  it  to  an  adjoining  district,  is  mandatory. —  Where  it  appears 
that  an  action,  brought  in  this  court  and  transferred  to  a  district  not 
adjoining  because  of  the  disqualification  of  the  justice,  was  brought  in 
the  proper  district  and  no  appeal  is  taken  from  an  order  denying  de- 
fendant's motion  to  further  transfer  the  cause,  not  to  the  district 
adjoining  the  one  in  which  the  action  had  been  brought  but  to  the 
district  in  which  defendant  resided,  the  objection  that  the  district  to 
which  the  transfer  was  made  did  not  adjoin  the  district  in  which  the 
action  was  brought  was  waived  and  could  not  be  raised  for  the  first 


64  Actions  May  be  Continued,  Etc.  §  15. 

time  on  appeal  from  a  judgment  in  favor  of  plaintiff.    Lesser  v.  Adolph, 
46  Misc.  Rep.  265. 

Bias  or  prejudice  of  justice. —  It  has  been  held  by  Mr.  Justice  O'Gor- 
man  in  People  ex  rel.  Devery  v.  Jerome  (N.  Y.  Law  Journal  of  Novem- 
ber 12,  1901),  and  Mr.  Justice  Clarke  in  People  ex  rel.  Stein  v.  Brann 
(N.  Y.  Law  Journal  of  December  3,  1902),  that  a  writ  of  prohibition 
against  a  magistral e  to  prevent  his  trying  a  case  because  of  his  bias 
or  prejudice  will  not  lie. 

Note  to  section  15,   "Action    May  be  Continued    before  Another 

Justice." 

Reviewing  decision  of  another  justice;  exception  to  the  rule. —  The 
rule  that  one  justice  of  this  court  cannot  review  the  decision  of  an- 
other justice  does  not  apply  to  a  case  where,  after  the  defendant's 
motion  to  open  his  default  has  been  denied,  as  he  alleges,  upon  affida- 
vits surreptitiously  handed  to  the  justice  by  or  for  the  plaintiff  after 
the  argument  of  the  motion  and  because  of  the  justice's  misconception 
that  the  defendant  had  paid  the  judgment  voluntarily,  the  defendant 
applies,  without  leave  from  that  justice,  for  leave  to  reargue  and  for 
a  rearguraent  of  the  motion  to  another  justice  brought,  within  eighteen 
days,  into  the  Municipal  Court  district  by  the  system  of  rotation  in 
the  assignment  of  its  justices,  who  granted  a  reargument  and  also 
vacated  the  order  of  the  first  justice  denying  the  motion  to  open  the  de- 
fault —  as  the  motion  before  the  incoming  justice  is  under  the  cir- 
cumstances to  be  deemed  practically  a  separate  motion  made  on  different 
or  additional  facts.  Stromberg  v.  Di  Salvo,  38  Misc.  Rep.  139.  See 
also  People  v.  National  Trust  Co.,  31  Hun,  26. 

Note    to  section  16,  "Death  or  Removal  of  Justice  not  to  Impair 

Proceedings." 

Expiration  of  judge's  term;  successor  may  determine  motion. —  An 
order  vacating  a  judgment  of  this  court  made  by  a  justice  of  said 
court  after  the  expiration  of  his  term  of  office  is  a  nullity.  Under  the 
provisions  of  section  16  of  the  Municipal  Court  Act,  read  in  conjunc- 
tion with  section  254,  a  motion  to  set  aside  a  judgment  of  said  court 
and  for  a  new  trial,  pending  before  and  undecided  by  a  justice  thereof 
at  the  expiration  of  his  term  of  office,  may  be  heard  and  determined 
by  his  successor  in  office.     Gordon  v.  Trainor,  46  Misc.  Rep.  439. 

Notes  to  section  20,  "  Code,  Rules  of  Supreme  Court  Applicable; 

When." 

See  section  363,  "  Sections  of  the  Code  not  applicable." 
Regulation. —  The   extension   of   the   practice   in   courts   of   record   to 
this  court  by  section  20  of  the  Municipal  Court  Act  was  merely  in- 


§  25.  In  What  District  Brought.  65 

tended  to  regulate  the  matters  over  which  the  Municipal  Court  has 
jurisdiction.     Matter  of  Boltc,  97   App.   Div.  551. 

Judgment;  execution;  order  of  arrest. —  In  an  action  brought  in  this 
court  to  foreclose  a  lien  on  personal  property  which  the  defendant  had 
maliciously  and  willfully  disposed  of,  the  court  under  section  140  of 
the  Municipal  Court  Act  and  section  1487  of  the  Code  of  Civil  Pro- 
cedure, construed  in  connection  with  section  20  of  the  Municipal  Court 
Act,  has  no  power  to  enforce  a  judgment  against  the  defendant  by  an 
execution  against  the  person,  unless  an  order  of  arrest  has  been  issued 
in  the  action.     Liederman  v.  Rooner,  82  App.  Div.  541. 

Order  not  appealable;  levy  on  execution;  how  discharged  pending 
defendant's  appeal. —  An  order  of  a  justice  of  this  court  denying  a  mo- 
tion to  vacate  an  order  of  arrest  is  not  appealable.  Semhle,  that  where 
a  defendant  against  whom  a  judgment  has  been  recovered  in  this  court 
upon  which  execution  has  been  issued  and  levy  made  thereunder  on 
his  personalty  files  a  notice  of  appeal  and  serves  upon  the  plaintiff 
aii  undertaking  in  the  form  required  by  the  Municipal  Court  Act  (Laws 
1902,  chap.  5S0,  §  314)  for  more  than  $100,  and  for  twice  the  amount 
of  the  judgment  but  in  an  amount  less  than  $500,  the  effect  of  the 
service  is  merely  to  stay  further  proceedings  under  the  execution,  and 
if  the  defendant  desires  to  discharge  the  levy  he  should  file  a  new 
undertaking,  of  similar  conditions,  in  $500,  in  which  event  this  court 
would,  under  Code  Civil  Procedure,  section  1311,  taken  in  connection 
with  section  20  of  the  Municipal  Court  Act,  have  jurisdiction  to  make 
an  order  discharging  the  levy.     Hyman  v.  Segal,  44  Misc.  Rep.  226. 

§  25.  In  what  district  brought. — An  action  or  proceeding 
of  which  the  municipal  court  has  jurisdiction  must  be 
brought : 

1.  In  a  district  in  which  either  the  plaintiff  or  defendant 
or  one  of  the  plaintiffs  or  one  of  the  defendants  resides,  un- 
less all  the  plaintiffs  or  all  the  defendants  reside  out  of  the 
city  of  New  York,  in  which  case  the  action  of*  proceeding 
may  be  brought  in  said  court  in  any  district ;  provided,  how- 
ever, that  whenever  any  action  shall  be  brought  by  the  as- 
signee of  the  cause  of  action,  such  action  shall  upon  the 
demand  of  a  defendant  made  as  provided  in  subdivision  four 
of  this  section,  be  transferred  to  the  district  in  which  the 
defendant  resides  and  the  court  must  make  an  order  for  such 
transfer,   as  provided  in   subdivision   four  of  this  section. 

*  So  in  original. 


66  In  What  District  Brought.  §  25. 

(.4s  amended  by  Laws  1904,  chap,  93 ;  became  a  law  March 
18,  1904.) 

§  25.  In  what  district  brought. — An  action  or  proceeding 
of  which  the  municipal  court  has  jurisdiction  must  be 
brought: 

1.  In  a  district  in  which  either  the  plaintiff  or  defendant 
or  one  of  the  plaintiffs  or  one  of  the  defendants  resides,  un- 
less all  the  plaintiffs  or  all  the  defendants  reside  out  of  fhe 
city  of  New  York,  in  which  case  the  action  or  proceeding 
may  be  brought  in  said  court  in  any  district ;  provided,  how- 
ever, that  whenever  any  action  shall  be  brought  by  the  as- 
signee of  the  cause  of  action,  such  action  shall  upon  the 
demand  of  a  defendant  made  as  provided  in  subdivision  four 
of  this  section,  be  transferred  to  the  district  in  which  the 
defendant  resides  and  the  court  must  make  an  order  for  such 
transfer,  as  provided  in  subdivision  four  of  this  section. 

2.  If  the  defendant  be  a  corporation  created  by  law,  in  a 
district  in  which  the  plaintiff  or  either  of  the  plaintiffs  re- 
sides, or  in  which  (if  it  be  a  corporation)  it  transacts  its 
general  business  or  keeps  an  office  or  has  an  agency  estab- 
lished for  the  transaction  of  business  or  is  established  by  law, 
except  the  corporation  of  the  city  of  New  York,  which  may 
sue,  or  be  sued  in  any  district,  except  as  provided  for  in  sub- 
division five  of  this  section. 

3.  By  plaintiffs  not  residing  in  the  city  of  New  York,  in 
the  district  in  which  the  defendant,  or  one  of  the  defendants 
resides,  and  against  a  defendant  or  defendants,  not  residing 
in  said  city,  in  the  district  in  which  the  plaintiff  or  one  of 
the  plaintiffs  resides ;  but  where  all  the  parties  reside  out  of 
said  city  the  action  may  be  brought  in  any  district.  No 
person  who  shall  have  a  place  in  said  city  for  the  regular 
transaction  of  business  shall  be  deemed  a  nonresident  under 
the  provisions  of  this  act. 

4.  If  the  district  in  which  the  action  or  proceeding  is 
brought  is  not  the  proper  district,  the  action  may,  notwith- 
standing, be  tried  therein,  unless  the  action  is  transferred  to 
the  proper  district  before  trial  upon  demand  of  the  defendant 


§  25.  In  What  District  Brought.  67 

made  upon  or  before  the  joinder  of  issue  in  writing  or  in 
open  court,  followed  by  the  consent  of  the  plaintiff  given  in 
like  manner,  or  the  order  of  the  court.  The  demand  must 
specify  the  district  to  which  defendant  requires  the  action  to 
be  transferred.  The  court  must  make  such  order  when  the 
district  in  which  the  action  or  proceeding  is  brought  is  not 
the  proper  district,  as  specified  in  this  section  or  the  next  one, 
if  such  demand  be  made. 

5.  All  actions  by  or  on  behalf  of  the  city  of  New  York  to 
recover  a  penalty  or  fine  for  a  violation  of  any  corporation 
ordinance,  when  the  amount  of  such  penalty  or  fine  shall  not 
exceed  five  hundred  dollars,  must  be  brought  in  the  district 
in  which  the  violation  of  such  ordinance  happened  or  oc- 
curred. And  all  actions  to  recover  a  penalty  or  fine  for  a 
violation  of  any  provision  of  the  sanitary  code  or  of  any 
regulation  of  the  fire  commissioner  or  of  any  laws  or  ordi- 
nances which  either  the  health  or  fire  department  is  author- 
ized, empowered  and  especially  charged  to  enforce,  where 
the  amount  of  such  penalty  or  fine  shall  not  exceed  five  hun- 
dred dollars,  must  be  brought  in  the  district  in  which  such 
violation  happened  or  occurred.  (As  amended  by  Laws 
1904,  chap.  625,  passed  May  6,  1904.) 

Notes  to  section  25. 

The  amendment  in  subdivision  1  consists  of  the  word  "  or,"  which 
corrects  the  word  "  of,"  in  Laws  1904,  chapter  93. 

Notes  to  section  25,  subdivisions  2  and  3. 

Nonresident  plaintiff  against  a  foreign  corporation  having  a  place  of 
business  in  the  city  of  New  York. —  Jurisdiction  of  an  action  brought 
in  this  court  by  a  nonresident  plaintiff  against  a  foreign  corporation 
having  a  place  in  said  city  for  the  regular  transaction  of  its  business 
is  controlled  by  subdivision  3,  and  not  by  subdivision  2  of  section  25 
of  the  Municipal  Court  Act  (Laws  1902,  chap.  580),  and  under  subdi- 
vision 3  is  properly  brought  in  a  district  of  said  city  in  which  the  de- 
fendant corporation  has  a.  place  for  the  regular  transaction  of  a  portion 
of  its  business,  although  it  has  a  general  office  for  the  regular  trans- 
action of  its  business  in  another  district  in  said  city.  Goldzier  v.  Cen- 
tral R.  R.  of  N.  J.,  43  Misc.  Rep.  667. 


68  Action  ;  How  Commenced.  §  26. 

Notes  to  section  25,  subdivision  5. 

Construction;  removal  to  proper  district;  demand;  waiver. —  Although 
subdivision  5  of  section  25  requires  an  action  for  a  penalty  for  a  vio- 
lation of  an  order  of  the  department  of  health  of  the  city  of  New  York 
to  be  brought  in  the  court  district  in  which  the  violation  happened,  the 
provisions  of  subdivision  4  of  said  section,  permitting  the  action  to  be 
tried  where  brought  unless  upon  or  before  joinder  of  issue  the  defend- 
ant demands  a  transfer  to  the  proper  district,  lead  to  the  conclusion 
that  jurisdiction  is  not  affected  by  bringing  the  action  in  a  district 
other  than  the  one  in  which  the  violation  occurred.  Unless  the  de- 
fendant demands  a  transfer  upon  or  before  the  joinder  of  issue  the 
right  of  removal  is  lost  and  the  judgment  stands.  Department  of 
Health  v.  Halpin,  40  Misc.  Rep.  243. 

Notes  to  section  26,  "Action  ;  how  Commenced." 

Costs  to  defendant  upon  voluntary  discontinuance  by  plaintiff;  in- 
terpretation of  sections  248  and  332;  Municipal  Court  Act. —  Blum  v. 
O'Conner,  X.  Y.  Law  Journal,  July  1,  1903.  Supreme  Court,  Appellate 
Term,  June,  1903.  Opinion  by  Freedman,  P.  J.  This  case  is  not  re- 
ported elsewhere.  See  also  Barry  v.  Winkle,  36  Misc.  Rep.  171;  Levine 
v.  Haliner,  62  App.  Div.  195;  McCuskie  v.  Hendrickson,  125  N.  Y.  555. 

Costs  on  discontinuance  of  summary  proceedings. —  Where  a  landlord 
voluntarily  discontinues,  before  final  submission,  summary  proceedings 
taken  by  him  in  the  Municipal  Court  of  the  city  of  New  York  since 
the  passage  of  Laws  1002  (chap.  580),  the  tenant  is  entitled  as  costs 
to  his  actual  disbursements  to  the  extent  of  $10,  besides  the  fees  of 
any  witnesses  attending  from  another  county,  and  this  under  Code 
Civ.  Proc,  §  3076,  subd.  2.    Cohen  v.  Melle,  43  Misc.  Rep.  79. 

Right  to  discontinue  on  payment  of  costs. —  A  plaintiff  has  an  abso- 
lute right  to  discontinue  an  action,  brought  in  this  court,  at  any  time 
before  it  is  finally  submitted,  upon  payment  of  costs,  and  this  although 
the  defendant  has  interposed  a  counterclaim.  The  Municipal  Court 
Act  (Laws  1902,  chap.  580)  has  made  no  change  in  this  respect. 
Nichols  v.  Williams,  42  Misc.  Rep.  527. 

Leave  refused  a  plaintiff  where  granting  it  might  possibly  give  him 
an  unfair  advantage. —  A  plaintiff  brought  an  action  in  this  court  for 
a  sum  greater  than  $250,  and  that  action  was  at  the  instance  of  the 
defendant  removed  to  the  City  Court  of  said  city  under  Laws  1902 
(chap.  580,  §  3),  upon  the  ground  that  the  damages  claimed  exceeded 
$250.  Afterward  the  plaintiff  brought  a  second  action  in  the  Munici- 
pal Court,  on  the  same  claim,  for  $249,  and  thereafter  asked  of  but 
was  refused  by  the  City  Court  leave  to  discontinue  the  first  action  on 
payment  of  costs.  Held,  that  leave  to  discontinue  the  City  Court 
action  was  properly  refused,  as  the  conduct  of  the  plaintiff  indicated 
a  determination  to  try  the  case  in  the  Municipal  Court  and  justified 


§  27. 


Summons  ;  Requisites. 


69 


a  suspicion  that  this  determination  rested  upon  the  belief,  ill  founded 
if  entertained,  that  the  defendant  would  be  at  a  greater  disadvantage 
in  that  court  than  in  the  City  Court.  Finklestein  v.  Meenan,  43  Misc. 
Rep.  376. 

Service  of  summons. —  There  is  no  provision  in  the  Municipal  Court 
Act  which  requires  that  on  the  service  of  an  alias  summons  the  original 
summons  should  also  be  served.  The  alias  summons  is  as  much  & 
writ  issued  to  obtain  jurisdiction  as  the  first  summons.  Lawrence  v. 
Bernstein,  46  Misc.  Rep.  608. 

Notes  to  section  27,  "Summons;   Requisites." 

"  Section  twenty-five  of  this  act,"  in  the  concluding  lines  thereof,  is 
an  error,  and  should  read  section  twenty-nine. 

Fictitious  name;  when  the  judgment  is  fatally  defective  and  an  exe- 
cution issued  thereon  is  void. —  The  summons  in  an  action  brought  in 
the  Municipal  Court  of  the  city  of  New  York  was  entitled  as  follows: 


"  Mary  Mabkowitz,  Plaintiff, 
against 
Etta  Lipsky  and  John  Goldbebg, 
Defendants. 


Free  summons. 
■  First  names  being  fictitious',  un- 
known to  plaintiff." 


The  certificate  of  service  recited  that  the  marshal  served  the  sum- 
mons "  on  John  Goldberg,  one  of  the  within-named  defendants  *  *  * 
and  that  I  know  the  person  to  be  one  of  the  defendants  therein 
named."  The  docket,  under  the  title  "  Markowitz  against  Lipsky  et 
ai.,"  recited  that  the  plaintiff  appeared  in  person  and  that  the  com- 
plaint was  for  goods  sold  and  delivered;  that  the  defendant  appeared 
in  person,  and  that  judgment  was  rendered  for  $20.25  damages  and 
$1  costs. 

The  record  did  not  show  for  or  against  whom  the  judgment  had 
been  rendered,  or  that  Goldberg  was  a  party  to  the  action  or  appeared 
therein.  An  execution  was  then  issued  directing  the  marshal  to  col- 
lect the  amount  due  out  of  "  the  separate  property  of  the  judgment 
debtor,  John  Goldberg,  first  name  fictitious,  real  name  unknown  to 
plaintiff."  This  execution  was  levied  upon  property  belonging  to 
Nathan  M.  Goldberg,  who  was  one  of  the  persons  upon  whom  the  sum- 
mons in  the  action  was  served,  and  who  appeared  in  answer  to  the 
summons.  In  an  action  brought  by  Nathan  M.  Goldberg  against 
Markowitz  and  the  marshal  who  levied  the  execution  to  recover  dam- 
ages for  the  alleged  conversion  of  the  property  levied  upon,  it  was 
Held,  that  the  record  of  the  judgment  was  fatally  defective,  and  that 


70  "Who  alay  Issue  Summons,  Etc.  §  29. 

the  execution  issued  thereon  was  void  upon  its  face,  and  constituted 
no  protection  to  the  marshal  or  to  any  one  acting  under  it;  that 
the  docket  did  not  show  upon  its  face  that  any  judgment  had  been 
rendered  in  favor  of  the  plaintiff  against  the  defendant;  that,  as 
Lipsky  was  the  only  defendant  named  in  the  record,  there  was  no  pre- 
sumption that  the  proceeding  was  against  any  one  but  Lipsky.  Gold- 
berg v.  Markoicitz,  94  App.  Div.  237,  238. 

Section  29.  Summons:  attorney-general  and  corporation 
counsel  may  issue,  et  cetera. —  In  any  and  all  actions  brought 
in  the  name  of  the  people  of  the  state  of  New  York  by  the 
attorney  general  or  in  the  name  of  the  city  of  New  York,  or 
of  any  department,  board,  or  officer  thereof,  by  the  corpora- 
tion counsel  of  the  city  of  New  York,  as  attorney  for  said 
city,  or  said  department,  board  or  officer  thereof,  to  recover 
a  penalty  or  penalties  for  the  violation  of  any  laws  or  or- 
dinance, the  summons  may  be  issued  out  of  said  court  by  the 
attorney  general  or  by  the  corporation  counsel  in  his  own 
name  without  the  same  being  subscribed  by  the  clerk  of  the 
court  where  such  action  or  actions  are  brought,  and  in  such 
actions  the  attorney  general  or  the  corporation  counsel  shall 
not  be  required  to  pay  to  the  clerk  of  the  court  the  fees  in 
the  action,  but  shall  account  therefore  to  the  city  treasurer 
and  shall  collect  the  same  from  the  defendant,  when  judg- 
ment is  recovered;  and  no  fees  or  costs  shall  be  demanded 
of  the  people  of  the  state  of  New  York  or  the  attorney  gen- 
eral or  of  the  said  the  city  of  New  York,  or  any  board  or 
officer  thereof  in  any  such  suit  or  proceeding.  (As  amended 
by  Laws  1905,  chap.  73;  become  a  law  March  17,  1905.) 

Notes. 

This  section  is  the  same  as  section  1384  of  the  charter,  as  amended 
by  Laws  1905  (§  125),  which  became  a  law  March  31,  1905,  with  the 
exception  of  the  omission  of  the  word  "  department "  before  the  word 
"  board  "  in  the  last  line. 

Exemption  as  to  costs  upon  appeal  by  the  city. —  The  concluding 
part  of  section  29  of  the  Municipal  Court  Act  provides  that  "  no  fees 
or  costs  shall  be  demanded  of  the  city  of  New  York,  or  any  board  or 
officers  thereof  in  any  such  suit  or  proceeding."  The  words  "any 
such  suit  or  proceeding"  refer  to  an  action  or  proceeding  to  recover 


§  31.  Method  of  Service  on  Summons.  71 

a  penalty  for  the  violation  of  any  laws  or  ordinance  brought  in  the 
manner  authorized  by  section  29.  In  the  case  at  bar  the  plaintiff  and 
appellant,  upon  its  defeat  in  the  court  below,  had  the  benefit  of  the 
concluding  part  of  the  sentence,  and  it  is  extremely  doubtful  whether 
the  exemption  as  to  costs  covers  the  further  aggressive  proceeding  by 
the  appeal.  To  have  the  question  which  is  presented  in  a  number  of 
other  cases  before  us  settled,  the  costs  of  the  appeal  will  be  imposed 
in  the  order  of  affirmance,  and  the  appellant  may  have  leave  to  appeal 
to  the  Appellate  Division.  Health  Department  of  the  City  of  New 
York  v.  Owen,  Supreme  Court,  Appellate  Term.  Freedman,  P.  J., 
Bischoff  and  Blanchard,  JJ.,  N.  Y.  Law  Journal,  December  11,  1903, 
reported  in  42  Misc.  Rep.  222,  as  to  action  to  recover  a  penalty  from  a 
physician  for  failure  to  report  facts  relative  to  birth  of  a  child  as 
required  by  Charter,  section   1237. 

Notes  to  section  30,  "Service;  Alias." 

Endorsement  of  summons.  In  an  action  to  recover  a  penalty  where 
the  original  summons  contained  the  endorsement  required  by  section 
38,  the  fact  that  the  copy  alias  summons  served  with  the  copy  sum- 
mons was  not  endorsed  "  action  for  a  penalty,  etc.,"  does  not  deprive 
the  court  of  jurisdiction.  State  Board  of  Pharmacy  v.  Jacob,  46  Misc. 
Rep.  607. 

Service  of  summons. —  There  is  no  provision  in  the  Municipal  Court 
Act  which  requires  that  upon  the  service  of  an  alias  summons,  the 
original  summons  should  also  be  served.  The  alias  summons  is  as 
much  a  writ  issued  to  obtain  jurisdiction  as  the  first  summons.  Law- 
rence v.  Bernstein,  46  Misc.  Rep.  608. 

Notes  to  section  31,  "  Method  of  Service  of  Summons." 

Original  and  copy  summons. —  There  is  no  provision  in  the  Municipal 
Court  Act  which  requires  that  on  the  service  of  an  alias  summons  the 
original  summons  should  also  be  served.  The  alias  summons  is  as 
much  a  writ  issued  to  obtain  jurisdiction  as  the  first  summons.  Law- 
rence v.  Bernstein,  46  Misc.  Rep.  608. 

By  Laws  1905  (chap.  211),  section  2881  of  the  Code  of  Civil  Pro- 
cedure was  amended  to  read  as  follows : 

§  2881.  Service  of  summons,  relating  to  express,  insurance  and  tele- 
graph companies. —  Where  the  defendant  to  be  served  is  a  corporation, 
association,  partnership  or  person  doing  business  in  the  state  as  an 
express  company,  an  insurance  company,  or  a  telegraph  company,  and 
no  person  resides  in  the  county  to  whom  a  copy  of  the  summons  may 
be  delivered,  as  prescribed  in  the  foregoing  sections  of  this  article,  it 
may  be  personally  served  on  the  express  company  by  delivering  a  copy 
thereof  to  any  local  or  general  agent  to  receive  freight  or,  parcels, 
route  agent,  or  messenger  of  the  defendant,  residing  in  the  county,  and 


72  Order  for  Service  of  Summons,  Etc.        §  32. 

on  any  insurance  company  by  delivering  a  copy  thereof  to  any  local 
or  general  agent  of  the  defendant,  residing  in  the  county,  and  on  any 
telegraph  company  by  delivering  a  copy  thereof  to  any  office  manager 
of  the  defendant,  residing  in  the  county;  unless  at  least  thirty  days 
before  it  was  issued,  the  defendant  had  filed  in  the  office  of  the  clerk 
of  the  county,  a  written  instrument,  designating  a  person  residing 
in  the  county,  upon  whom  process  to  be  issued  by  a  justice  of  the  peace 
against  the  defendant  may  be  served;  in  which  case  the  summons  may 
be  personally  served  by  delivering  a  copy  thereof  to  the  person  so 
designated. 

§  2.  This  act  shall  take  effect  September  first,  nineteen  hundred 
and  five. 

As  section  31  of  the  Municipal  Court  Act  contains  the  provisions  for 
"  Methods  of  Service  "  of  the  summons,  it  is  doubtful  if  this  provision 
of  the  Code  will  be  applicable  to  this  court. 

Notes  to  section  32,  "Order  for  Service  of  Summons;  When 
Defendant  not  Found." 

Substituted  service  of  summons  —  Affidavit  —  Service  of  alias  sum- 
mons.—  The  failure  to  state  in  an  affidavit,  upon  which  an  order  for 
substituted  service  of  a  Municipal  Court  summons  was  granted,  that 
no  previous  application  for  such  an  oi'der  had  been  made,  is  an  irregu- 
larity merely  and  refusal  of  the  trial  justice  to  dismiss  the  complaint 
upon  that  ground  does  not  constitute  reversible  error.  Lawrence  v. 
Bernstein,  46  Misc.  Rep.  608.  See  also  Skinner  v.  Stiele,  88  Hun,  307 ; 
Matter  of  National  G.  Co.,  82  App.  Div.  593;  Pratt  v.  Bray,  10  Misc. 
Rep.  445. 

Notes  to  section  34,  "Papers  to  be  Filed;  Proof  of  Service." 

Substituted  service;  proof  thereof  requisite  to  jurisdiction. —  Proof  of 
due  substituted  service  and  a  compliance  with  section  34  of  the  Munic- 
ipal Court  Act  are  essential  to  jurisdiction.  A  mere  memorandum  on 
the  summons  of  payment  of  fees  is  not  such  proof  of  substituted  service. 
Objection  to  jurisdiction  on  such  ground  may  be  raised  at  any  time. 
Skinner  V.  Jordan,  46  Misc.  Rep.  92. 

Notes  to  section  36,  "  Who  may  Serve  Summons." 

Amending  affidavit  of  service. —  It  not  appearing  that  defendant  made 
objection  to  the  filing  of  an  amended  affidavit  of  service,  the  question 
of  plaintiff's  right  to  file  it  cannot  be  considered  on  appeal.  State  Board 
of  Pharmacy  v.  Jacob,  46  Misc.  Rep.  607. 

Notes  to  section  37,  "  Return  Day." 

Judicial  notice  as  to  the  time  of  sunrise  and  sunset. —  The  court  will 
take  judicial  notice  of  the  time  of  the  rising  or  setting  of  the  sun  on 


§  56.     Order  of  Arrest  to  be  Granted.       73 

any  given  day,  and  may,  where  such  question  is  material,  consult  the 
almanac,  not  strictly  as  evidence,  but  for  the  purpose  of  refreshing  the 
memory  of  the  court  and  jury.  Montenes  v.  Metropolitan  St.  R.  Co., 
77  App.  Div.  493. 

Notes  to  section  38,  "  Indorsement  upon  Summons." 

Alias  summons  —  Amending  affidavit  of  service. —  Where  in  an  action 
brought  in  this  court  to  recover  a  statutory  penalty,  the  original  sum- 
mons and  copy  thereof  had  upon  it  the  required  reference  to  the  cause 
of  action,  the  fact  that  the  copy  alias  summons  served  with  the  copy 
summons,  was  not  endorsed  "  action  for  a  penalty,  etc.,"  as  required  by 
section  38  of  the  Municipal  Court  Act  did  not  deprive  the  court  of 
jurisdiction. 

It  not  appearing  that  defendant  made  objection  to  the  filing  of  an 
amended  affidavit  of  service,  the  question  of  plaintiff's  right  to  file  it 
cannot  be  considered  on  appeal.  State  Board  of  Pharmacy  v.  Jacob,  46 
Misc.  Rep.  607. 

Notes  to  section  40,  "  Parties;  Appearance  of." 

Appearance  by  a  person  forbidden  to  practice. —  The  attorney  for  the 
defendant,  in  an  action  brought  in  this  court,  cannot  avail  himself  of 
the  objection  that  a  person  sent  by  him  to  the  court  on  the  return  day 
of  the  summons,  and  who  then  entered  a  general  appearance  for  the 
defendant,  was  not  an  admitted  attorney  and  was  forbidden  to  practice 
by  section  63  of  the  Code  of  Civil  Procedure.  Kerr  v.  Walter,  104  App. 
Div.  45. 

Costs. —  Appearance  by  attorney  is  necessary  to  obtain  costs  under 
section  332.     Rice  v.  Hogan,  45  Misc.  Rep.  400. 

Nonappearance;  restoring  case  to  calendar. —  Where  certain  cases  in 
this  court  were  dismissed  for  nonappearance  of  either  party  within  the 
time  required,  the  justice  had  no  authority  to  restore  the  causes  to  the 
calender  and  proceed  to  the  trial  thereof,  except  by  defendant's  express 
consent,  or  by  his  voluntary  appearance,  without  objection,  after  ser- 
vice of  a  notice  of  motion  on  him  for  reinstatement.  Eichner  v.  Cohen, 
91  X.  Y.  Supp.  357. 

§  56.  In  what  cases  order  of  arrest  to  be  granted — ,  An  or- 
der to  arrest  the  defendant  must  or  may  be  granted,  directed 
to  any  marshal  of  said  city,  in  the  following  cases,  but  no 
female  can  be  arrested  except  for  a  wilful  injury  to  person  or 
property : 

1.  In  an  action  for  the  recovery  of  damages,  in  a  cause  of 
action  not  arising  on  contract,  when  the  defendant  is  not  a 
resident  of  the  city  of  IsTew  York,  or  is  about  to  remove  there- 


74  Warrant  of  Attachment.  §  74. 

from,  or  when  the  action  is  for  a  wilful  injury  to  person  or 
property. 

2.  In  an  action  for  a  fine  or  penalty,  or  for  money  or  prop- 
erty embezzled  or  wrongfully  misapplied  or  converted  to  his 
own  use  by  a  public  officer,  or  an  officer  of  a  corporation,  or 
an  attorney,  factor,  broker,  agent  or  clerk,  in  the  course  of 
his  employment  as  such,  or  by  any  other  person  acting  in  a 
fiduciary  capacity. 

3.  Where  the  defendant  has  been  guilty  of  a  fraud  in  con- 
tracting the  debt,  or  incurring  the  obligation  for  which  the 
action  is  brought,  or  in  concealing  or  disposing  of  the  prop- 
erty, for  the  taking,  detention,  or  conversion  of  which  the 
action  is  brought,  except  that  no  order  of  arrest  shall  be 
granted  in  an  action  specified  in  this  subdivision  where  the 
debt  contracted  or  the  obligation  incurred  over  all  payments 
and  set-offs  or  the  property  taken,  obtained  or  converted, 
amounts  to,  or  is  valued  at  one  hundred  dollars,  or  less. 

4.  When  the  defendant  has  removed,  concealed,  or  dis- 
posed of  his  property,  or  is  about  to  do  so,  with  the  intent  to 
defraud  his  creditors,  except  that  no  order  shall  be  granted 
in  such  an  action  unless  the  plaintiff's  claim  or  demand  over 
all  payments  and  set-offs  exceeds  one  hundred  dollars.  (As 
amended  by  Laws  1903,  chap.  156,  in  effect  April  8,  1903.) 

5.  When  an  arrest  is  authorized  by  special  statute,  in  an 
action  for  a  fine  or  penalty,  or  for  a  wilful  violation  of  duty. 

6.  When  the  action  is  for  the  recovery  of  a  fine  or  penalty 
under  the  ordinances  or  by-laws  of  the  city  of  New  York. 

Notes  to  section  56. 

The  amendments  consist  in  adding  to  subdivisions  3  and  4  that  no 
order  of  arrest  shall  be  granted  unless  the  amount  of  the  claim  exceeds 
$100. 

Cash  bail. —  It  stands  in  place  of  the  bail  —  Presumed  to  belong  to 
the  party  whose  appearance  it  secures  —  Effect  of  his  written  direction 
to  the  sheriff  to  pay  it  to  a  third  person  as  against  his  creditors. 
Finelite  v.  Sonberg,  75  App.  Div.  455.  See  People  ex  rel.  Meyer  V. 
Gould,  75  App.  Div.  524. 

Constitutionality. —  This  act  was  held  to  be  constitutional  by  the 
Supreme  Court,  Special  Term,  Blanchard,  J.,  in  People  ex  rel.  Arena  v. 
Warden,  etc.,  N.  Y.  Law  Journal,  April  21,  1903. 


§  89.  Application  to  Procure  Warrant.  75 

Body  execution. —  No  right  to,  where  no  order  of  arrest  had  issued  in 
action  to  foreclose  lien  on  a  chattel  where  sale  was  conditional.  Teitel- 
baum  V.  Pisatilo,  N.  Y.  Law  Journal,  February  6,  1903,  Roesch,  J., 
borough  of  Manhattan,  fourth  district. 

Money  deposited  in  lieu  of  bail-right  of  a  creditor  of  the  accused 
thereto  where  the  money  belongs  to  a  third  person.  People  ex  rel. 
Meyer  v.  Gould,  75  App.  Div.  524.  See  Finelite  v.  Sonberg,  75  App. 
Div.  455. 

Sale  of  entire  retail  stock  to  one  person;  Laws  1902,  chapter  528, 
construed. —  It  is  doubtful  whether  such  a  sale  in  which  so  much  de- 
pends upon  the  purchaser  as  required  by  this  statute  would  furnish 
grounds  for  an  order  of  arrest.  It  might  be  that  the  seller  had  done 
everything  required  upon  his  part,  and  that  the  purchaser  had  promised 
to  do  what  the  statute  requires,  and  had  omitted  to  do  it,  and  yet  the 
sale  would  be  bad  if  the  act  is  valid.  The  plaintiff  having  failed  to 
prove  affirmatively  that  the  defendant  did  not  comply  with  the  statute 
in  making  the  sale  has  failed  to  prove  a  cause  of  action  necessary  to 
support  an  order  of  arrest.  Friedland  v.  Wexler,  N.  Y.  Law  Journal, 
September  14,  1903,  Bennet,  J.,  sitting  in  the  seventh  district,  borough 
of  Manhattan  in  August,  1903.  See  also  Veit  v.  Collins,  39  Misc. 
Hep.  40. 

Notes  to  section  68,  "  Motion  to  Discharge  from  Arrest." 

Failure  to  issue  execution  in  time;  subsequent  issue. —  Plaintiff  ob- 
tained an  order  of  arrest,  recovered  judgment,  but  failed  to  issue 
execution  before  the  expiration  of  twenty-four  hours  after  he  obtained 
the  judgment,  held,  that  defendant,  although  out  on  bail,  is  entitled  to 
be  discharged  under  Section  68. 

Held,  also  that  such  discharge  does  not  defeat  plaintiff's  right  to  the 
subsequent  issue  of  a  body  execution  upon  the  judgment  under  section 
271.     Rogow  v.  Clark,  40  Misc.  Rep.  208. 

Order  denying  motion  to  vacate  order  of  arrest  is  not  appealable. 
Leavitt  v.  Katzoff,  43  Misc.  Rep.  26;  Smith  v.  Ely,  46   Misc.  Rep.  458. 

Notes  to  section  74,  "  What  Must  be  Shown  to  Procure  Warrant 
of  Attachment." 

Conclusions;  knowledge;  statements. — A  warrant  of  attachment  which 
states  that  the  grounds  thereof  are  "  that  defendant  is  a  natural  person 
and  that  he  has  departed  from  place  where  he  last  resided  with  intent 
to  defraud  his  creditors  and  to  avoid  service  of  a  summons;  that  he 
keeps  himself  concealed  with  like  intent;  that  he  has  removed  his 
property  from  the  county  of  Kings,  where  he  last  resided,  with  intent 
to  defraud  his  creditors  and  has  secreted  his  property  with  like  in- 
tent," is  not  defective  in  form.  The  warrant  of  attachment  will  be 
vacated   where  the   affidavits   on   which   it  was   issued   consist  almost 


76  Application  to  Vacate  Warrant.     §§  77-79 

wholly  of  statements  of  others  and  of  conclusions  of  the  affiants 
founded  thereon,  and  do  not  state  on  the  knowledge  of  the  affiants  any 
facts  establishing  the  existence  of  any  one  of  the  grounds  stated  in 
the  warrant.     Bclaney  v.  Bouse,  91   App.   Div.   437. 

Sale  of  merchandise  in  bulk  under  Laws  1902,  chapter  528;  judgment 
by  default,  summons  not  personally  served;  fraud  must  be  actual,  not 
merely  statutory,  to  justify  an  attachment. —  A  judgment  cannot  be  ren- 
dered by  default  pursuant  to  section  91  of  the  New  York  Municipal 
Court  Act  (Laws  1902,  chap.  580)  or  section  2918  of  the  Code  of  Civil 
Procedure,  in  an  action  where  the  defendant  has  not  appeared  or  been 
personally  served  with  the  summons,  but  in  which,  however,  his  prop- 
erty has  been  attached,  unless  it  appears  that  the  affidavits  upon  which 
the  warrant  of  attachment  was  issued  were  sufficient  to  authorize  it. 

On  an  application  for  a  warrant  of  attachment  on  the  ground  that 
the  defendant  has  disposed  of  his  property  with  intent  to  defraud  his 
creditors,  the  burden  of  proving  the  fraudulent  intent  is  upon  the 
party  applying  for  the  writ,  and  circumstances  which  create  a  strong 
suspicion  of  fraud,  but  yet  fall  short  of  prima  facie  proof  thereof,  are 
not  sufficient.  An  averment  in  the  moving  affidavits  that,  upon  a  sale 
by  the  defendant  of  his  entire  stock  of  merchandise  in  bulk,  the  de- 
fendant and  the  purchaser  did  not  do  the  things  required  by  chapter 
528  of  the  Laws  of  1902,  which  provides  that  the  sale  of  an  entire 
stock  of  merchandise  in  bulk  is  fraudulent  and  void  against  the  cred- 
itor of  the  seller,  unless,  at  least  five  days  before  the  sale,  the  seller 
and  the  purchaser  do  certain  things,  is  insufficient  to  establish  the 
violation  of  the  statute  in  question,  where  it  is  evident  that  the  aver- 
ment is  not  based  upon  personal  knowledge  and  the  situation  of  the 
parties  is  not  such  as  to  create  a  presumption  of  knowledge  and  no 
sources  of  information  are  disclosed.  Semble,  that  the  fraud,  which, 
bj  the  Code  of  Civil  Procedure,  is  made  the  ground  for  an  attachment, 
is  an  actual  and  intentional  or  moral  fraud,  and  not  one  which  is 
declared  to  be  such  by  statute  because  of  the  omission  of  certain  speci- 
fied formalities.     Mohlman  Co.  v.  Landicehr,  87  App.  Div.  83. 

Notes  to  section  77,  "  How  Warrant  Executed." 

Additional  personal  property  exempt  in  certain  cases. —  See  amend- 
ment to  Code  Civil  Procedure,  section  1391,  by  Laws  1905,  chapter  175, 
to  be  found  under  section  271,  p.  101,  of  this  supplement. 

Notice  to  section  89,  "Application  to  Vacate  or  Modify  Warrant 
of  Attachment." 

An  attachment  against  "John  Doe";  effect  of  failure  of  return  to 
excuse  due  service  of  summons. —  An  attachment  against  "  John  Doe  " 
is  not  issued  against  a  fictitious  person  and  should  not  be  vacated  on 
the  motion  of  the  real  party  against  whom  it  is  issued.     Where,  how- 


§  89.  Application  to  Vacate  Warrant.  11 

ever,  there  has  been  no  personal  service  of  the  summons  and  the  return 
fails  to  make  proper  excuse  therefor,  the  defect  is  fatal  to  jurisdiction, 
although  the  return  is  amendable.  Silverman  v.  Davis,  45  Misc. 
Rep.   417. 

Conclusions  and  facts. —  Affidavits  stating  conclusions  of  belief,  but 
not  facts,  are  insufficient  grounds  for  an  attachment.  Railings  v.  Mc- 
Donald, 76  App.  Div.  112. 

Attaching  money  deposited  as  bail,  facts,  not  conclusions  of  belief, 
must  be  stated.     Railings  v.  McDonald,  7G  App.  Div.   112. 

Irregularity. —  Attachment,  motion  to  vacate  it  because  of  a  recital 
of  "  wrongful  detention "  instead  of  "  wrongful  conversion "  is  an  ir- 
regularity and  must  be  specified  in  the  notice  of  motion.  Railings  v. 
McDonald,  76  App.  Div.  112. 

Jurisdiction  —  Insufficient  affidavit  — Warrant  not  signed  by  plain- 
tiff's attorney  —  Inquest  —  Insufficiency  of  proof. —  The  affidavit  of 
plaintiff,  upon  which  a  warrant  of  attachment  was  issued,  applied  for 
upon  the  ground  that  defendant  had  departed  from  the  State  with  in- 
tent to  defraud  his  creditors  and  avoid  the  service  of  summons  and 
kept  himself  concealed  with  like  intent,  did  not  state  upon  what  his 
alleged  belief  that  defendant  had  so  departed,  with  said  intent,  was 
founded;  it  stated  that  plaintiff  and  his  employees  had  made  diligent 
effort  to  find  defendant,  but  did  not  show  in  what  such  efforts  consisted, 
nor  what  his  employees  were  told  of  defendant's  departure,  or  who 
told  them,  or  who  the  employees  were  that  were  told.  Neither  the  affi- 
davits of  the  said  employees  or  of  the  persons  who  informed  them  as 
to  defendant's  departure  were  furnished,  nor  was  any  reason  given  for 
not  furnishing  them.  Held,  that  the  affidavit  was  insufficient  to  con- 
fer jurisdiction  to  issue  the  warrant. 

A  warrant  of  attachment  not  signed  by  plaintiff's  attorney  as  re- 
quired by  section  641  of  the  Code  of  Civil  Procedure,  is  irregular  and 
void. 

Where,  upon  an  inquest,  plaintiff's  proof  consists  merely  of  the  con- 
tract sued  upon  and  his  conclusion  that  there  was  something  due,  he  is 
not  entitled  to  judgment.     Lassen  v.  Burt,  46  Misc.  Rep.  582. 

Note. —  Section  75  of  the  Municipal  Court  Act,  "  Contents  of  War- 
rant," contains  no  provision  that  the  warrant  of  attachment  must  be 
signed  by  the  attorney,  nor  is  there  any  other  provision  in  the  act 
containing  such  requirement;  for  obvious  reasons  a  warrant  of  attach- 
ment may  be  obtained  in  this  court  by  the  plaintiff  personally,  with- 
out an  attorney,  and  thus  there  would  be  no  attorney  to  sign  the 
warrant.  Section  641  of  the  Code  of  Civil  Procedure  has  no  application 
to  this  court;  it  applies  only  to  courts  of  record  where  a  party  cannot 
appear  personally  and  must  have  an  attorney.  The  case  of  McDonald 
v.  Kieferdorf,  18  N.  Y.  Supp.  763  (46  N.  Y.  State  Rep.  176),  cited  as 
authority,  arose  in  the  late  Court  of  Common  Pleas,  and  is  an  author- 
ity for  such  practice  in  a  court  of  record. 


78  Effect  of  Vacating  Warrant,  Etc.  §  90. 

Notes  to  section  90,  "  Effect  of  Vacating   Warrant,"   and  section 
91,  "  Judgment  where  Property  has  been  Attached." 

Fraud;  attachment  issued  and  summons  has  not  been  personally 
served;  the  fraud  which  will  justify  an  attachment  must  be  an  actual, 
not  a  mere  statutory  one;  what  is  not  sufficient  to  establish  that  a  sale 
of  merchandise  in  bulk  is  void  under  chapter  528  of  the  Laws  of  1902; 
judgment  by  default. —  A  judgment  cannot  be  rendered  by  default  pur- 
suant to  section  91  of  the  New  York  Municipal  Court  Act  (Laws 
1902,  chap.  580)  or  section  2918  of  the  Code  of  Civil  Procedure,  in  an 
action  where  the  defendant  has  not  appeared  or  been  personally  served 
with  the  summons,  but  in  which,  however,  his  property  has  been  at- 
tached, unless  it  appears  that  the  affidavits  upon  which  the  warrant 
of  attachment  was  issued  were  sufficient  to  authorize  it.  On  an  ap- 
plication for  a  warrant  of  attachment  on  the  ground  that  the  defendant 
has  disposed  of  his  property  with  intent  to  defraud  his  creditors,  the 
burden  of  proving  the  fraudulent  intent  is  upon  the  party  applying 
for  the  writ,  and  circumstances  which  create  a  strong  suspicion  of  fraud, 
but  yet  fall  short  of  prima  facie  proof  thereof,  are  not  sufficient. 

An  averment  in  the  moving  affidavits  that,  upon  a  sale  by  the  de- 
fendant of  his  entire  stock  of  merchandise  in  bulk,  the  defendant  and 
the  purchaser  did  not  do  the  things  required  by  chapter  528  of  the 
Laws  of  1902,  which  provides  that  the  sale  of  an  entire  stock  of  mer- 
chandise in  bulk  is  fraudulent  and  void  against  the  creditor  of  the 
seller,  unless,  at  least  five  days  before  the  sale,  the  seller  and  the 
purchaser  do  certain  things,  is  insufficient  to  establish  the  violation 
of  the  statute  in  question  where  it  is  evident  that  the  averment  is  not 
based  upon  personal  knowledge  and  the  situation  of  the  parties  is  not 
such  as  to  create  a  presumption  of  knowledge  and  no  sources  of  infor- 
mation are  disclosed.  Semble,  that  the  fraud,  which,  by  the  Code  of 
Civil  Procedure,  is  made  the  ground  for  an  attachment,  is  an  actual 
and  intentional  or  moral  fraud,  and  not  one  which  is  declared  to  be 
such  by  statute  because  of  the  omission  of  certain  specified  formalities. 
Mohlman  Co.  v.  Landwehr,  87  App.  Div.  83. 

Judgment  falls,  when. —  Where  defendant  is  not  personally  served 
with  process  and  jurisdiction  is  sought  to  be  obtained  by  procuring  and 
levying  an  attachment  on  his  personal  property,  if  the  attachment  be 
unwarranted,  a  judgment  rendered  against  defendant  will  fall.  Durkins 
v.  Paten,  97  App.  Div.  139. 

Jurisdiction. —  Where  an  action  in  this  court  is  begun  by  the  service 
of  a  warrant  of  attachment  without  personal  service  of  the  summons, 
and  the  defendant  does  not  appear  in  the  action  except  upon  a  motion 
to  vacate  the  attachment,  which  is  denied,  the  court  has  no  jurisdiction 
to  render  judgment  against  the  defendant  by  default  if  the  attach- 
ment should  have  been  set  aside  for  insufficiency.  The  fact  that  after 
the  denial  of  the  motion  to  vacate  the  attachment  the  action  was  dis- 


§§  95-115a.  Replevin.  79 

missed  because  of  the  failure  of  either  party  to  appear  on  the  day  set 
for  its  trial,  and  that  the  defendant  subsequently  consented  that  the 
case  be  restored  to  the  calendar  and  allowed  judgment  to  be  taken 
against  him  by  default,  does  not  operate  as  a  waiver  of  the  defendant's 
right  to  contest  the  jurisdiction  of  the  court.  Delaney  V.  Bonse,  91 
App.  Div.  437. 

Order  vacating  attachment  is  not  appealable. —  Feldman  v.  Siegel, 
43  Misc.  Rep.  392. 

'  Notes  to  section  95,  "Action  to  Recover  a  Chattel." 

The  omission  of  defendants  to  demand  judgment  for  a  return  of  a 
chattel  does  not  preclude  them  from  maintaining  a  subsequent  action 
to  regain  possession  of  the  chattel  subordinate  to  the  title  of  a  third 
person.     Levy  v.  Hohiceisner,  101  App.  Div.  82. 

Lost  property. —  The  finder  of  articles  lost  in  a  large  retail  dry  goods 
store  is  entitled  to  possession  thereof  as  against  the  proprietor  of  the 
store.  The  finder  of  the  property  is  a  voluntary  bailee  for  the  owner, 
if  ever  he  should  come  forward  to  reclaim  it,  and  an  action  of  replevin 
will  lie  in  favor  of  the  finder  against  any  person  who  detains  posses- 
sion from  him.  White  v.  Daniels,  N.  Y.  Law  Journal,  January  9,  1904, 
Joseph,  J.,  sitting  in  the  seventh  district,  borough  of  Manhattan. 

§  115a.  Third  party  may  interplead  and  defend. —  At  any 
time  before  a  chattel  or  chattels  which  have  heen  replevied 
are  actually  delivered  to  either  part}',  and  at  least  two  days 
before  the  return  day  of  the  summons,  a  person,  not  a  party 
to  the  action,  who  claims  a  right  to  the  possession  of  the 
chattel  or  chattels  so  replevied,  or  any  part  thereof,  which 
right  is  claimed  to  have  existed  at  the  time  when  the  said 
chattel  or  chattels  were  replevied,  and  which  he  desires  to 
assert,  may  make  an  affidavit  and  deliver  the  same  to  the 
court,  stating  that  he  makes  such  claim,  and  does  so  without 
collusion  with  the  defendant.  The  party  shall  also  specify 
in  such  affidavit,  the  chattel  or  chattels  to  which  he  makes 
claim,  setting  forth  the  facts  upon  which  his  right  depends, 
and  praying  to  be  impleaded  as  a  defendant  in  the  action. 
The  court  may  thereupon  grant  leave  to  said  party  to  appear 
and  defend,  and  the  provisions  of  this  act  in  relation  to  the 
defendant  or  defendants  originally  proceeded  against,  so  far 
as  applicable,  shall  apply  to  the  said  party,  and  the  court 
may,  in  its  discretion,  make  such  order,  or  direct  such  deliv- 


80  Replevin.  §§  115a-117. 

ery  of  the  possession  of  the  property,  as  may  be  just,  and 
thereupon  the  entire  controversy  may  be  determined  in  the 
action.  Nothing  in  this  section,  however,  shall  be  construed 
to  affect  the  rights  of  the  parties  to  maintain  a  separate 
action,  or  to  recover  damages  for  the  wrongful  taking  or 
detention  of  a  chattel,  unless  judgment  is  awarded  against 
him,  as  herein  provided,  on  the  merits.  In  that  case  the 
court  may  grant  leave  to  said  party  to  appear  and  defend, 
and  the  provisions  of  this  act  in  relation  to  the  defendant 
or  defendants  originally  proceeded  against,  then  apply  to 
said  party.  (This  section  added  hy  Laws  1903,  chap.  431, 
in  effect  May  7,  1903.) 

Notes  to  section  115a. 

See  also  section  187,  "  Interpleader  by  order  in  certain  cases." 
Calling  third  party  as  a  witness;  omission  to  demand  return  of  chattel. 
—  Where  the  defendants  set  up  in  their  answer  title  in  a  third  per- 
son they  may  call  such  third  person  as  a  witness,  irrespective  of  the 
fact  that  the  third  person  did  not  avail  himself  of  the  provisions  of 
section  115a  of  the  Municipal  Court  Act,  authorizing  a  third  party 
claiming  title  to  the  chattel  to  interplead  and  defend.  In  such  a  case 
the  omission  of  the  defendants  to  demand  judgment  for  a  return  of 
the  chattel  does  not  preclude  them  from  maintaining  a  subsequent 
action  to  regain  possession  of  the  chattel  subordinate  to  the  title  of 
the  third  person.  Section  115«  of  the  Municipal  Court  Act  does  not 
affect  or  limit  section  117  of  that  act.  Levy  v.  Hohiveisner,  101  App. 
Div.   82. 

Notes   to   section    117,   "Defendant  May    Demand   Judgment   for 
Return  of  Chattel. 

Omission  to  demand;  calling  third  party  as  a  witness. —  Where  the 
defendants  set  up  in  their  answer  title  in  a  third  person,  they  may 
call  such  third  person  as  a  witness  irrespective  of  the  fact  that  the 
third  person  did  not  avail  himself  of  the  provisions  of  section  115a  of 
the  Municipal  Court  Act,  authorizing  a  third  party  claiming  title  to 
the  chattel  to  interplead  and  defend.  In  such  a  case  the  omission  of 
the  defendants  to  demand  judgment  for  a  return  of  the  chattel  does 
not  preclude  them  from  maintaining  a  subsequent  action  to  regain 
possession  of  the  chattel,  subordinate  to  the  title  of  the  third  person. 
Section  115a  of  the  Municipal  Court  Act  does  not  affect  or  limit  sec- 
tion 117  of  that  act.    Levy  v.  Hohweisner,  101  App.  Div.  82. 


§§  123-139.  Replevin.  81 

Notes  to  section  123,  "  Final  Judgment,  et  cetera." 

Neglect  to  demand  return  of  chattels. —  A  final  judgment  rendered  in 
favor  of  the  defendants  in  an  action  brought  in  this  court  to  replevy 
a  chattel  should  not,  where  the  chattel  has  been  replevied  by  the 
plaintiff,  and  the  defendants  have  not  required  a  return  thereof  and 
have  neglected  to  demand  judgment  for  the  return  of  the  chattel  as 
they  were  authorized  to  do  by  section  117  of  the  Municipal  Court  Act 
(Laws  1902,  chap.  580),  award  possession  of  the  chattels  to  the 
defendants.  If  the  final  judgment  improperly  awards  the  defendants 
possession  of  the  chattel  the  Appellate  Division  has  power  to  modify 
such  judgment  on  appeal.    Levy  v.  Eohiceisner,  101  App.  Div.  82. 

Notes  to  section  126,  "Action  on  Undertaking;  when  Maintain- 
able." 

Replevin. —  Plaintiff  permitted  to  recover  damages  though  replevin 
suit  had  been  abandoned.  Vera  v.  Constantine,  N.  Y.  Law  Journal, 
November  24,  1902,  Rasquin,  J.  (second  district,  borough  of  Queens), 
sitting  in  the  borough  of  Manhattan,  second  district. 

Notes  to  section  137,  "Action  to  foreclose  a  lien  on  a  chattel,  when 
and  in  what  courts  maintainable." 

See  also  notes  to  section  1,  subdivision  10. 

Boarding-house  keeper. —  The  lien  of  a  boarding-house  keeper  (Laws 
1897,  chap.  418,  §  71,  as  amended  Laws  1899,  chap.  380)  gives  him 
no  lien  on  property  brought  upon  the  premises  by  a  boarder  nor  any 
right  to  detain  it  for  board  where  the  legal  rights  to  both  the  title 
and  possession  of  the  property  were  then  in  another,  and  this  because 
the  true  owner  cannot  under  the  Constitution  be  divested  of  his  prop- 
erty except  by  due  process  of  law.    Barnett  v.  ~\Yalker,  39  Misc.  Rep.  323. 

Parties  to  the  foreclosure  of  a  lien  on  chattels. —  Where  a  mortgagee 
of  chattels,  removed  without  consent  by  the  mortgagor,  after  default 
and  demand  to  the  premises  of  a  storage  company,  sues  that  company 
in  this  court  under  section  137  to  foreclose  his  lien,  the  mortgagor  must 
be  made  a  party  defendant,  as  although  she  has  lost  all  title  and 
right  of  possession  by  her  default,  she  has  a  right  of  redemption  which 
may  have  a  substantial  value.  Moreover,  for  the  protection  of  other 
interests,  she  should  be  made  a  party  to  the  end  that  she  may  be  bound 
by  the  judgment.    Fishel  V.  Hamilton  Storage  W.  Co.,  42  Misc.  Rep.  532. 

Notes  to  section   139,  "Action  on  Conditional  Sale  Agreement." 

Body  execution. —  No  right  to,  where  no  order  of  arrest  had  issued  in 
action  to  foreclose  a  lien  on  a  chattel  where  sale  was  conditional. 
Teitelbaum  v.  Pisatilo,  N.  Y.  Law  Journal,  February  6,  1903,  Roesch, 
J.,  borough  of  Manhattan,  fourth  district. 

6 


S2  Action  to  Foreclose  Liex.  §  139. 

Chattel  mortgage;  this  section  does  not  prevent  chattel  mortgagee 
from  taking  possession  under  mortgage;  when  demand  necessary  in 
conversion;  mortgagee's  possession  under  replevin  not  shown  when 
judgment-roll  not  in  evidence  and  defective. —  In  an  action  for  conver- 
sion against  a  chattel  mortgagee,  alleged  to  have  replevied  the  prop- 
erty in  violation  of  section  139  of  the  Municipal  Court  Act,  which  pro- 
vides that  no  action  can  be  maintained  in  said  court  on  a  chattel 
mortgage  except  to  foreclose  the  same:  held,  where  the  judgment-roll 
in  the  alleged  action  of  replevin  returned  on  appeal  was  only  marked 
at  trial  for  identification  and  was  not  put  in  evidence  and  is  defective 
in  proof  of  service  of  summons  and  in  that  no  writ  of  replevin  is 
attached,  etc.,  the  appellate  court  is  bound  by  the  record.  There  is 
nothing  to  show  that  the  property  was  taken  on  replevin. 

Held,  further,  that  as  the  chattel  mortgage  gave  to  the  mortgagee  a 
right  to  enter,  take  away,  and  sell  the  goods,  etc.,  there  is  nothing  in 
such  record  to  show  that  defendant's  possession  was  not  rightfully 
obtained  under  the  mortgage.  The  aforesaid  limitation  of  section  139 
of  the  Municipal  Court  Act  does  not  preclude  a  chattel  mortgagee 
from  taking  possession  according  to  the  terms  of  the  mortgage.  If  the 
taking  of  goods  is  lawful,  it  does  not  become  unlawful  without  a  sub- 
sequent demand  for  compliance  with  the  terms  of  the  mortgage  or  a 
demand  with  tender  of  amount  due.  Shelton  v.  Holzwasser,  46  Misc. 
Rep.  76. 

Conversion;  an  action  for  conversion,  based  on  a  breach  of  a  written 
contract  for  the  conditional  sale  of  personal  property,  will  not  lie. — 
Section  139  of  the  act  relating  to  the  Municipal  Court  of  the  city  of 
New  York  (Laws  1902,  chap.  580),  which  provides,  "No  action  shall 
be  maintained  in  this  court,  which  arises  on  a  written  contract  of  con- 
ditional sale  of  personal  property,  where  title  is  not  to  vest  in  the 
person  hiring  until  payment  of  a  certain  sum;  or  a  chattel  mortgage 
made  to  secure  the  purchase  price  of  chattels;  except  an  action  to 
foreclose  the  lien,  as  provided  in  this  article,"  limits  the  jurisdiction 
of  the  court  with  respect  to  actions  for  a  breach  of  a  written  contract 
for  the  conditional  sale  of  personal  property,  and  a  party  having  such 
a  cause  of  action  cannot  maintain  an  action  in  that  court  for  the  con- 
version of  such  property  on  the  ground  that  the  cause  of  action  is 
for  "  an  injury  to  property,"  within  the  meaning  of  subdivision  14  of 
section  1  of  the  act.    Samodwitz  v.  Karpf,  80  App.  Div.  496. 

Household  goods,  et  cetera,  no  longer  excluded;  repeal. —  Laws  1905, 
chapter  503,  has  repealed  section  115  of  Laws  1897,  chapter  418,  as 
amended  by  Laws  1898,  chapter  354,  and  Laws  1904,  chapters  259  and 
698,  which  excluded  from  conditional  sales  agreements  certain  articles 
such  as  household  goods,  pianos,  organs,  butcher's  and  meat  market 
tools  and  fixtures,  coaches,  hearses,  carriages,  buggies,  phaetons,  bi- 
cycles, law  books,  and  law-office  supplies,  etc.,  etc. 


§  140.  Action  to  Foreclose  Lien.  83 

Jurisdiction;  when  the  action  is  upon  a  chattel  mortgage. —  In  an 
action  brought  by  plaintiff  in  this  court  to  replevy  a  pool  table,  it 
appeared  that  he  sold  it  to  the  defendant  and  took  back  a  chattel  mort- 
gage for  the  price,  and  that  after  defendant  had  defaulted  thereon  he 
sold  the  pool  table  to  the  other  defendant  in  the  action.  Section  139 
provides  that,  "  No  action  shall  be  maintained  in  this  court  which 
arises  on  *  *  *  a  chattel  mortgage  made  to  secure  the  purchase 
price  of  chattels;  except  an  action  to  foreclose  the  lien,  as  provided  in 
this  article.  For  the  purpose  of  this  section  an  instrument  in  writing 
as  above  stated  shall  be  deemed  a  lien  on  a  chattel.     *     *     *" 

Held,  that  the  action  arose  upon  the  breach  of  a  chattel  mortgage 
made  to  secure  the  purchase  price  of  chattels,  within  the  meaning  of 
the  statute,  and  that  it  was  not  maintainable  in  said  court  because  it 
was  not  the  permissible  action  to  foreclose  the  lien,  but  was  an  action 
in  which  the  plaintiff  sought  to  recover  as  absolute  owner  after  default. 
Ginsburg  v.  De  Silvestri,  42  Misc.  Rep.  530. 

When  an  action  is  not  upon  a  chattel  mortgage. —  This  court  has 
jurisdiction  of  an  action  brought  by  a  chattel  mortgagor  against  the 
mortgagee  for  selling  the  mortgaged  chattels  by  mistake  after  receiving 
them  back  from  her  after  default  and  agreeing  to  keep  them  for  her 
until  she  was  financially  able  to  take  them  again,  as  such  an  action 
arises  on  the  bailment  to  keep  the  chattels,  and  not  on  the  chattel 
mortgage,  and  therefore  is  not  within  the  prohibition  of  section  139 
of  the  Municipal  Court  Act  (Laws  1902,  chap.  580).  Goodmcm  V. 
Banman,  43  Misc.  Rep.  83. 

§  140.  Judgment;  order  of  arrest;  body  execution. —  In  an 
action  of  foreclosure,  as  provided  in  the  last  section,  where 
the  sum  or  sums,  over  all  payments  and  set-offs  due  and  pay- 
able by  the  terms  of  a  written  contract  of  conditional  sale, 
or  upon  the  payment  of  which  the  title  to  hired  personal 
property  vests,  or  secured  by  a  chattel  mortgage,  amount  to 
more  than  one  hundred  dollars,  the  plaintiff  may  allege 
that  the  defendant  wilfully  or  maliciously  disposed  of  or 
concealed  the  property  or  a  part  thereof,  covered  by  the  in- 
strument on  which  suit  is  instituted,  in  which  case  the  court 
may  grant  an  order  of  arrest  in  the  manner  provided  in 
article  one  of  this  title,  and  upon  such  allegation  being 
proved  on  the  trial,  execution  against  the  person  shall  issue, 
if  the  provisions  of  this  act  relating  to  indorsement  upon 
the  summons  have  been  complied  with,  unless  the  property 
awarded  by  the  judgment  is  produced  by  the  defendant  to 


84  Pleadings.  §§  140-145. 

satisfy  the  execution  and  levy,  when  made  as  provided  in 
this  article.  Upon  judgment  being  rendered,  as  prescribed 
in  this  article  under  the  provisions  of  this  or  the  last  pre- 
ceding section,  and  execution  issuing  thereon,  the  property 
subject  to  levy  must  be  produced  or  possession  made  readily 
available  at  the  time  of  such  levy,  to  satisfy  the  execution 
in  the  manner  prescribed  in  the  judgment,  and  on  failure 
so  to  do,  where  the  plaintiff  has  recovered  judgment  for  a 
sum  exceeding  one  hundred  dollars,  exclusive  of  costs,  an 
execution  against  the  person  shall  issue,  provided  the  pro- 
visions of  this  act  relating  to  indorsement  upon  the  sum- 
mons have  been  complied  with,  on  the  return  of  the  marshal 
having  the  execution  made  to  the  clerk  of  the  court  in  the 
district  in  which  the  judgment  is  docketed,  to  the  effect  that 
such  property  is  not  available  for  levy  and  execution.  (As 
amended  by  Laws  1903,  chap.  156,  in  effect  April  8,  1903.) 

Notes  to  section   140. 

See  also  notes  to  section  139. 

Foreclosure  of  lien  on  personal  property. —  In  an  action  brought  in 
this  court  to  foreclose  a  lien  on  personal  property  which  the  defendant 
had  maliciously  and  willfully  disposed  of,  the  court,  under  section  140 
of  the  Municipal  Court  Act  and  section  1487  of  the  Code  of  Civil  Pro- 
cedure, construed  in  connection  with  section  20  of  the  Municipal  Court 
Act,  has  no  power  to  enforce  a  judgment  against  the  defendant  by  an 
execution  against  the  person,  unless  an  order  of  arrest  has  been  issued 
in  the  action.     Liederman  v.  Rooner,  82  App.  Div.  541. 

Instalment  payments. —  Action  may  be  maintained  to  recover  sum 
or  sums  due  on  a  conditional  sale  agreement,  but  no  order  of  arrest 
shall  issue  in  such  cases.     Section  139,  Municipal  Court  Act. 

Notes  to  section  145,  "  Pleading  on  Joinder  of  Issue." 

Bill  of  particulars. —  The  power  of  this  court  to  order  a  bill  of  par- 
ticulars is  no  longer  governed  by  Code  of  Civil  Procedure,  section  2942, 
but  by  section  145  of  the  Municipal  Court  Act  of  1902,  which  section, 
unlike  the  Code  section,  does  not  limit  the  time  for  making  such  an 
order  to  the  time  of  joining  issue.  Pough  v.  Cerimedo,  44  Misc.  Rep. 
246. 

A  bill  of  particulars  is  but  an  amplification  of  the  complaint  and 
does  not  operate  to  change  the  nature  of  the  cause  of  action  set  forth 
in  such  complaint.     The  pleadings  in  an  action  brought  in  this  court 


§  148.  Pleadings.  85 

against  a  street  railroad  company  were  oral.  The  complaint  was  "  for 
personal  injuries,"  and,  as  amplified  by  the  bill  of  particulars,  alleged 
that  the  plaintiff  on  a  certain  day  boarded  a  car  of  the  defendant  and 
tendered  his  fare  and  that  the  conductor  refused  to  accept  such  fare, 
and,  without  cause  or  provocation,  assaulted  the  plaintiff  and  threw 
him  off  the  car,  and  that  by  reason  of  such  misconduct  the  plaintiff 
Avas  injured. 

Held,  that  the  cause  of  action  was  for  breach  of  contract  and  was 
not  for  an  assault  within  the  meaning  of  section  1364  of  the  Greater 
Neio  York  Charter.  Hines  v.  Dry  Dock,  E.  B.  &  B.  R.  R.  Co.,  75  App. 
Div.  391. 

Costs. —  A  verified  pleading  or  written  notice  of  appearance  is  neces- 
sary to  recover  costs  under  section  332.  Rice  V.  Hogan,  45  Misc.  Rep. 
400. 

Default. —  The  provisions  of  section  145  do  not  necessitate  a  holding 
that  issue  is  joined  when  the  defendant's  default  is  taken.  The  opening 
of  the  default  left  the  parties  to  the  action  in  exactly  the  same  position 
which  they  occupied  before  the  return  day  of  the  summons,  except  in 
so  far  as  the  opening  of  the  default  imposed  conditions  upon  the  de- 
fendant.    Levy  v.  Roossvn,  93  App.  Div.  387. 

Oral  pleading;  assumpsit;  ex  delicto;  tort;  wa'iver. —  Where  the  plead- 
ings are  oral,  but  the  return  recites  that  the  plaintiff  "  complained  of 
the  defendant  for  damages  of  property,"  and  the  bill  of  particulars 
reads,  "  Plaintiff  claims  damages  in  the  sum  of  $150  on  account  of 
the  destruction  and  withholding  of  a  set  of  plans,  drawings,  etc.,  rep- 
resenting a  mausoleum,"  the  action  will  be  deemed  one  in  tort. 

When  the  cause  of  action  is  ex  delicto,  the  plaintiff  may  waive  the 
tort  and  sue  in  assumpsit.  A  plaintiff  who  has  elected  to  sue  in  tort 
cannot  recover  in  assumpsit.  Bermel  v.  Harnischfeger,  97  App. 
Div.  402. 

When  issue  not  joined. —  Where  a  defendant  sued  in  this  court  upon  a 
verified  complaint  enters  upon  the  return  day  an  oral  general  denial, 
he  has  not  joined  issue  within  subdivision  2  of  section  145  of  the 
Municipal  Court  Act  (Laws  1902,  chap.  580),  as  that  provision  re- 
quires him  to  file  a  verified  answer  where  the  complaint  is  verified. 
Hinrichs  v.  Interuroan  Street  R.  R.  Co.,  43  Misc.  Rep.  654. 

Notes  to  section  148,  "  Defendant  May  Offer  to  Allow  Judgment 
or  Compromise." 

Compromise. —  No  advantage  can  be  taken  of  offers  made  by  way  of 
compromise  of  a  disputed  claim.  A  party  may,  with  impunity,  attempt 
to  buy  his  peace.  Tennent  v.  Dudley,  144  N.  Y.  504,  and  cases  cited, 
reversing  same  case,  68  Hun,  225. 


86  Pleadings.  §§  149,  150. 

Notes  to  section  149,  "Complaint." 

Refusing  to  pay  wages  of  a  judgment  debtor. —  A  complaint  in  an 
action  brought  under  the  authority  of  the  last  sentence  of  section  1391 
of  the  Code  of  Civil  Procedure,  as  amended  by  chapter  461  of  the  Laws 
of  1903,  against  a  person  or  corporation  refusing  to  honor  an  execu- 
tion issued  against  tue  wages  of  a  judgment  debtor  pursuant  to  that 
section,  is  demurrable  if  it  fails  to  allege  that  no  prior  similar  execu- 
tion against  the  judgment  debtor  is  outstanding. 

When  a  statute  gives  a  new  remedy  and  prescribes  the  requisite  con- 
ditions, or  if  an  action  of  a  certain  character  or  against  certain  per- 
sons be  authorized  only  after  the  performance  of  certain  conditions,  it 
is  necessary  to  allege  performance  of  these  conditions. 

A  person  seeking  to  maintain  an  action  under  a  statute  must  state 
every  fact  requisite  to  enable  the  court  to  judge  whether  he  has  a  cause 
of  action  under  the  statute.  Rosenstock  v.  City  of  New  York,  97  App. 
Div.  337. 

Notes  to  section  150,  "Answer;  What   to  Contain." 

An  assignment  cannot  be  attacked  on  the  ground  of  fraud  under  a 
general  denial.    Midler  v.  Lese,  45  Misc.  Rep.  638. 

In  an  action  upon  an  assigned  claim  for  wages,  the  defendant  may 
not  plead  that  the  assignment  was  made  to  secure  a  usurious  loan. 
Union  C.  &  I.  Co.  v.  Union  S.  Y.  <&  M.  Co.,  46  Misc.  Rep.  431. 

Duress. —  General  allegations  of  duress  are  insufficient  where  there 
is  no  allegation  or  proof  of  facts  constituting  duress.  Harrington  v. 
City  of  New  York,  40  Misc.  Rep.  165. 

Judgment  for  plaintiff  on  the  pleadings,  when  proper. —  In  an  aetion 
by  an  attorney  to  recover  the  value  of  professional  services  and  dis- 
bursements, a  judgment  for  the  plaintiff  on  the  pleadings  is  proper 
when  the  answer  fails  to  deny  the  employment,  rendition  of  services, 
their  value,  and  the  disbursements  alleged  to  have  been  made.  Pierce 
X.  Neiclin.  46  Misc.  Rep.  122. 

Negative  pregnant. —  An  answer  which  simply  denies  in  the  precise 
language  of  the  complaint  "that  in  the  month  of  April.  1904,  plain- 
tiff did  work,  labor,  and  services,  etc.,"  constitutes  a  negative  pregnant 
and  must  be  construed  to  mean  that  plaintiff  rendered  the  services  at 
some  time  other  than  as  alleged,  and  the  trial  justice  may  treat  the 
allegations  of  the  complaint  as  having  been  admitted.  Levin  &  Meyer 
Con.  Co.  v.  Jackson,  46  Misc.  Rep.  445. 

New  matter;  counterclaim;  sections  of  Code  of  Civil  Procedure  made 
applicable. —  Section  2938  of  the  Code  of  Civil  Procedure,  which  provides 
that  the  answer  interposed  in  an  action  in  a  Justice's  Court  may  set 
forth  "  one  or  more  defenses  or  counterclaims,"  must  be  construed  in 
connection  with   section  2945   of  the  Code  of   Civil   Procedure,   which 


§§  157,  158.  Pleadings.  87 

makes  sections  501  and  502  of  such  Code  applicable  to  counterclaims 
interposed  in  actions  commenced  in  Justices'  Courts. 

It  was  not  the  intention  of  the  Legislature,  when  making  section 
2938  of  the  Code  of  Civil  Procedure  applicable  to  the  Municipal  Court 
of  the  city  of  New  York  and  omitting  to  make  section  2945  applicable 
thereto,  to  allow  any  new  matter  constituting  a  counterclaim  to  be  set 
up  in  an  answer  interposed  therein,  but  only  new  matter  constituting 
a  counterclaim  as  that  term  is  defined  in  sections  501  and  502.  Lundine 
V.  Callaghan,  82  App.  Div.  621. 

Office  address  or  place  of  business. —  The  defendant  filed  a  verified 
answer  signed  "Anna  K.  Daniel,  Defendant  in  person."  Her  office  ad- 
dress or  place  of  business  was  not  added.  Held,  such  omission  is  a 
mere  irregularity  and  does  not  vitiate  the  answer  or  its  service. 
Semble,  that  plaintiff  could  have  moved  to  set  aside  the  answer  speci- 
fying the  grounds,  and  the  same  might  have  then  been  amended  with- 
out injustice  to  either  party.  Heidetiheimer  v.  Daniel,  45  Misc.  Rep. 
385. 

Payment  is  an  affirmative  defense;  it  must  be  pleaded. —  Where  the 
answer  interposed  in  an  action  contains  no  plea  of  payment  or  partial 
payment,  the  defendant  is  not  entitled  to  show  that  the  plaintiff  has 
been  paid  on  account  of  his  claim  a  greater  sum  than  the  amount  which 
the  plaintiff  admits  in  his  complaint  has  been  paid.  Payment  is  an 
affirmative  defense  which  must  be  specially  pleaded,  and,  in  the  ab- 
sence of  such  a  special  plea,  evidence  thereof  is  not  admissible  under 
a  general  denial.     Rogers  v.  Simonson  &  Son  Co.,  45  Misc.  Rep.  323. 

Usury;  personal  defense. —  In  an  action  upon  an  assigned  claim  for 
wages,  the  defendant  may  not  plead  that  the  assignment  was  made  to 
secure  a  usurious  loan.  Union  C.  <&  I.  Co.  v.  Union  8.  Y.  &  M.  Co., 
46  Misc.  Rep.  431. 

In  this  State  a  usurious  contract  is  not  void  per  se,  but  merely 
voidable  at  the  option  of  the  borrower  or  those  in  privity  with  him. 
Williams  V.  Tilt,  36  N".  Y.  319;  Chapuis  v.  Mathot,  91  Hun,  565. 

Notes  to  section  157,  "Counterclaim  where  Amount  is  in  Excess 
of  Court's    Jurisdiction." 

Appeal. —  Quaere,  whether  the  objection  that  this  court  did  not  have 
jurisdiction  of  a  counterclaim  for  an  amount  in  excess  of  $500  can 
be  successfully  urged  for  the  first  time  upon  an  appeal  from  a  judgment 
sustaining  the  counterclaim.     Lifshitz  v.  McConnell,  80  App.  Div.  289. 

Notes   to   section    158,    subdivision    6,     "When  Defendant   May 

Demur." 

Copartnership;  all  the  partners  must  be  made  parties  defendant;  the 
defect  of  parties  need  not  be  pleaded  where  one  partner  is  sued  and 
no  mention  is  made  of  the  copartnership;   practice. —  In  an  action  to 


88  Pleadings  §§  165-171. 

recover  the  value  of  goods  sold  and  delivered  to  a  copartnership,  all 
of  the  partners  must  be  made  defendants.  Where  such  an  action  is 
brought  in  this  court  against  but  one  of  the  partners,  and  the  com- 
plaint therein  makes  no  mention  of  any  partnership,  the  failure  to 
plead  the  nonjoinder  of  the  other  partners  does  not  preclude  the  de- 
ft ndant  from  raising  that  objection  on  the  trial.  Semble,  that  in  this 
court  the  defense  of  a  nonjoinder  of  parties  must  ordinarily  be  raised 
by  answer  or  it  will  be  deemed  to  have  been  waived.  Sparks  v. 
Fogarty,  93  App.  Div.  472. 

Notes   to   section    165,   "Exhibition   of  Accounts  at  Instance   of 
Adverse  Party  May  be  Ordered." 

Power  of  court;  justice;  examination  of  books. —  The  authority  con- 
tained in  section  165  of  the  Municipal  Court  Act  for  ordering  the  ex- 
hibition of  a  writing  or  account  declared  on  is  conferred  upon  the  court 
and  not  upon  a  justice  thereof.  The  section  does  not  authorize  the 
examination  of  books  as  by  a  bill  of  discovery.  Matter  of  Bolte,  97 
App.  Div.  551,  552. 

Notes  to  section  166,  "Amendment  of  Pleadings." 

Changing  cause  of  action. —  When,  after  a  trial  on  a  complaint  for  use 
and  occupation  of  premises  by  defendant  in  maintaining  telephone  wires 
on  the  roof,  the  plaintiff  is  allowed  to  amend  by  substituting  trespass 
as  his  cause  of  action  and  the  case  is  retried  after  an  adjournment  and 
before  a  new  jury  upon  the  new  issue,  the  allowance  of  such  amendment 
is  not  reversible  error  but  is  in  furtherance  of  justice.  In  such  action 
the  rental  value  of  the  use  of  the  building  for  stringing  wires  is  a 
proper  measure  of  damages  and  it  is  for  the  jury  to  say  what  that 
fair  and  reasonable  rental  value  is.  Bunke  v.  New  York  Telephone 
Co.,  46  Misc.  Rep.  97,  98. 

Notes   to   section    170,   "  Pleadings   to   be   Liberally   Construed." 

When  judgment  for  plaintiff  on  the  pleadings  proper. —  In  an  action 
by  an  attorney  to  recover  the  value  of  professional  services  and  dis- 
bursements a  judgment  for  the  plaintiff  on  the  pleadings  is  proper 
when  the  answer  fails  to  deny  the  employment,  rendition  of  services, 
their  value  and  the  disbursements  alleged  to  have  been  made.  Pierce 
V.  Newlin,  46  Misc.  Rep.  122. 

Notes  to  section  171,  "  Immaterial  Variance  in  Pleading  to  be  Dis- 
regarded." 

Quantum  meruit  and  express  contract. —  Where  the  complaint  in  an 
action  in  this  court  to  recover  for  work  done  and  materials  furnished 
is  framed  upon  a  quantum  meruit,  while  the  proof  establishes  the  ex- 
istence of  an  express  contract,  the  court  may,  under  section  2943  of 


§§  179-187.  Pleadings.  89 

the  Code  of  Civil  Procedure,  which  is  applicable  to  this  court,  disregard 
the  variance,  unless  it  is  satisfied  that  the  defendant  has  been  misled 
to  his  prejudice  thereby.     Lundine  v.  Callaghan,  82  App.  Div.  621. 

Notes  to  section  179,  "Answer  of  Title." 

Summary  removal  from  land  of  a  squatter;  this  court  is  not  ousted 
of  jurisdiction  by  a  question  of  title  raised  collaterally;  the  provisions 
of  the  Code  of  Civil  Procedure  as  to  the  removal  of  an  action  where  the 
title  to  real  property  is  involved  is  not  applicable;  amendment  of  tech- 
nical errors  in  pleading. —  The  fact  that  the  question  of  title  is  raised 
collaterally,  in  a  proceeding  instituted  in  the  Municipal  Court  of  the 
city  of  New  York  under  subdivision  4  of  section  2232  of  the  Code  of 
Civil  Procedure  for  the  summary  removal  of  an  alleged  squatter  from 
land  claimed  to  be  owned  by  the  petitioner  does  not  serve  to  oust  the 
Municipal  Court  of  jurisdiction. 

The  real  issue  involved  in  the  proceeding  is  as  to  the  right  to  the 
possession  of  the  premises,  and  the  provisions  of  the  Code  of  Civil 
Procedure  requiring  the  removal  of  an  action  brought  in  a  Justice's  or 
Municipal  Court,  where  the  determination  of  title  to  real  estate  is 
involved,  have  no  application  to  such  a  proceeding.  Where  the  denials 
contained  in  the  answers  interposed  in  such  a  proceeding  are  objection- 
able in  form  because  of  the  violation  of  a  technical  rule  of  pleading, 
but  are  not  misleading,  the  party  interposing  such  an  answer  should 
be  permitted  to  amend  the  same.  Van  Deventer  v.  Foster,  87  App. 
Div.  62. 

(The  law  for  removal  of  an  action  was  repealed  by  Laws  1904,  chap. 
598.) 

Notes    to   section    184,    "Title    Appearing   from    Plaintiff's    Own 

Showing." 

Title  to  real  property;  when  it  is  not  in  question. —  The  fact  that 
upon  the  trial  of  an  action  to  recover  moneys  deposited  by  the  plaintiff 
under  a  contract,  by  which  the  defendant  agreed  to  sell  to  him  certain 
real  estate,  it  is  conceded  that  the  defendant  was  unable  to  perform 
the  contract  of  sale  because  an  adjoining  building  encroached  upon  the 
property  contracted  to  be  sold  from  two  to  four  inches,  does  not  bring 
the  case  within  the  terms  of  section  184  of  the  Municipal  Court  Act 
(Laws  1902,  chap.  580)  which  requires  •  the  court  to  dismiss  the 
complaint,  where  it  appears  upon  the  trial,  by  the  plaintiff's  own 
showing,  that  the  title  to  real  property  is  in  question  and  that  the 
title  is  disputed  by  the  defendant.  Elinsky  v.  Berger,  87  App.  Div.  584. 

Notes  to  section  187,  "  Interpleader  by  Order  in  Certain  Cases." 

See  also  section  115a,  "third  party  may  interplead  and  defend." 
Interpleader;  when  permitted. —  The  Municipal  Court  Act,  section  187, 
permits  an  interpleader  only  in  an  action  on  contract,  or  to  recover  a 


90  Adjournments;  Trial.  §§  194-230. 

chattel;  hence,  where  a  defendant  has  been  interpleaded  in  an  action 
for  conversion  and  the  original  defendant  is  released  by  plaintiff,  the 
court  is  ousted  as  to  jurisdiction  as  to  both.  Semble,  an  assignment 
cannot  be  attacked  on  the  ground  of  fraud  under  a  general  denial. 
Midler  v.  Lese,  45  Misc.  Rep.  G38. 

Notes  to   section    194,   "Adjournment  Longer  than  Eight  Days; 
Undertaking." 

Justification  of  sureties. —  "While  this  section  makes  no  provision  for 
the  justification  of  sureties  the  power  to  require  the  same  is  derived 
by  this  court  through  section  20  of  this  act,  in  accordance  with  section 
811  of  the  Code  of  Civil  Procedure  and  Rule  5  of  the  Supreme  Court. 
Siegel  v.  Trivers,  N.  Y.  Law  Journal,  September  14,  1903,  Bennet.  J., 
borough  of  Manhattan,  twelfth  district,  sitting  in  the  thirteenth  district. 

Notes  to  section  230,  "  Issue  of  Fact  and  Law;  Judgment  within 
What  Time  to  be  Rendered." 

Bias  or  prejudice  of  justice. —  It  has  been  held  by  Mr.  Justice  O'Gor- 
man  in  People  ex  rel.  Devery  v.  Jerome  (N.  Y.  Law  Journal  of  Novem- 
ber 12,  1901),  and  Mr.  Justice  Clarke  in  People  ex  rel.  Stein  v.  Brawn 
(N.  Y.  Law  Journal  of  December  3,  1902),  that  a  writ  of  prohibition 
against  a  magistrate  to  prevent  his  trying  a  case  because  of  his  bias 
or  prejudice  will  not  lie. 

Decision  of  another  justice. —  One  judge  cannot,  upon  mere  motion, 
set  aside  the  decision  of  another  judge,  upon  allegations  that  the  latter 
had  erred  as  to  any  of  the  questions  submitted  to  his  determination. 
People  v.  National  Trust  Co.,  31  Hun,  26. 

Duty  of  justice  to  decide  case  within  fourteen  days  of  its  final  sub- 
mission; waiver. —  Where  the  record  in  an  action  tried  in  this  court  on 
November  19,  1903,  states,  after  the  words,  "  case  closed,"  that  the  case 
is  "  deemed  submitted  as  of  November  27,  1903,"  and  there  is  nothing 
to  show  that  either  side  objected  thereto,  the  parties  must  be  deemed  to 
have  consented  to  extend  the  time  for  final  submission  to  the  latter  date 
and  a  decision  rendered  within  fourteen  days  thereof  is  valid.  Bastable 
V.  Cuba  Supply  Co.,  43  Misc.  Rep.  89. 

Judgment  for  plaintiff  on  the  pleadings,  when  proper. —  In  an  action 
by  an  attorney  to  recover  the  value  of  professional  services  and  dis- 
bursements a  judgment  for  the  plaintiff  on  the  pleadings  is  proper 
when  the  answer  fails  to  deny  the  employment,  rendition  of  services, 
their  value  and  the  disbursements  alleged  to  have  been  made.  Pierce 
v.  Neiolin,  46  Misc.  Rep.  122. 

Jurisdiction  is  lost  by  the  justice  unless  he  files  his  decision  within 
fourteen  days.  Van  Valis  v.  Charonca,  40  Misc.  Rep.  226.  See  also 
Pennimnn  v.  La  Grange,  23  Misc.  Rep.  121;  Wallace  v.  Harris,  40  Misc. 
Rep.  216;  Lambert  v.  Solomon,  28  App.  Div.  562. 


§  231.  Trial;  Trial  Jurors.  91 

Reviewing  decision  of  another  justice;  exception  to  the  rule. —  The 
rule  that  one  justice  of  the  Municipal  Court  of  the  city  of  New  York 
cannot  review  the  decision  of  another  justice  of  that  court  does  not 
apply  to  a  case  where,  after  the  defendant's  motion  to  open  his  default 
has  been  denied,  as  he  alleges,  upon  affidavits  surreptitiously  handed 
to  the  justice  by  or  for  the  plaintiff  after  the  argument  of  the  motion 
and  because  of  the  justice's  misconception  that  the  defendant  had  paid 
the  judgment  voluntarily,  the  defendant  applies,  without  leave  from 
that  justice,  for  leave  to  reargue  and  for  a  reargument  of  the  motion 
to  another  justice  brought,  within  eighteen  days,  into  the  Municipal 
Court  district  by  the  system  of  rotation  in  the  assignment  of  its 
justices,  who  granted  a  reargument  and  also  vacated  the  order  of  the 
first  justice  denying  the  motion  to  open  the  default  —  as  the  motion 
before  the  incoming  justice  is  under  the  circumstances  to  be  deemed 
practically  a  separate  motion  made  on  different  or  additional  facts. 
Stromberg  v.  Di  Salvo,  38  Misc.  Rep.  139.  See  People  V.  National  Trust 
Co.,  31  Hun,  26. 

Vacating  this  court's  void  judgment;  the  order  is  appealable;  the 
appellate  court  is  concluded  by  the  return;  it  cannot  consider  state- 
ments in  contravention  thereof  in  the  brief  of  counsel. —  Where  a  justice 
of  this  court  renders  judgment  in  a  case  tried  before  him,  which  judg- 
ment is  void  because  it  was  not  rendered  within  the  fourteen  days  pre- 
scribed by  section  230  of  the  Municipal  Court  Act  (Laws  1902,  chap. 
580),  the  justice  has  power,  under  section  254  of  that  act,  to  make  an 
order  vacating  such  judgment.  Such  order  is  appealable  to  the  Appel- 
late Division  under  section  257  of  the  Municipal  Court  Act.  Upon 
such  an  appeal  the  court  is  bound  by  the  contents  of  the  return  made 
by  the  justice,  and  cannot  consider  statements  in  the  appellant's  brief, 
not  supported  by  the  return,  tending  to  show  that  the  judgment  was 
rendered  within  the  statutory  time.     Stem  v.  Fleck,  102  App.  Div.  272. 

Notes  to  section  231,  "Trial  by  Jury;  Drawing  the  Jury." 

Demand  for  jury  trial  after  judgment  by  default  has  been  opened  is 
sufficient. —  In  an  action  brought  by  an  attorney  and  counsellor-at-law 
to  recover  the  value  of  professional  services  rendered  by  him  to  the 
defendant,  the  latter  suffered  judgment  to  be  taken  against  him  by 
default.  Thereafter  the  default  was  opened  upon  the  condition,  among 
others,  that  an  answer  should  be  filed  on  or  before  November  6,   1903. 

When  this  direction  was  made,  the  counsel  for  the  defendant  asked 
for  a  jury  trial  and  offered  to  pay  the  clerk  for  a  venire.  The  applica- 
tion was  denied  by  the  court.  The  defendant  filed  his  answer  on 
November  6,  1903,  and  renewed  his  motion  for  a  jury  trial  and  his 
tender,  but  the  application  was  again  denied.  Held,  that  under  section 
231  of  the  New  York  Municipal  Court  Act  (Laws  1902,  chap.  580), 
which  provides:   "At  any  time  when  an  issue  of  fact  is  joined,  either 


92  Trial;  Trial  Jurors.  §§  233-239. 

party  may  demand  a  trial  by  jury,  and  unless  so  demanded  at  the 
joining  of  issue,  a  jury  trial  is  waived,"  the  defendant's  application 
lor  a  jury  trial  should  have  been  granted;  that  the  provision  of  sec- 
tion 145  of  the  Municipal  Court  Act  that  issue  in  certain  cases  must 
be  joined  on  the  return  day  of  the  summons,  except  as  otherwise  spe- 
cially prescribed  in  the  statute,  did  not  necessitate  a  holding  that 
issue  was  joined  in  the  case  at  bar  when  the  defendant's  default  was 
taken;  that  the  opening  of  the  default  left  the  parties  to  the  action 
in  exactly  the  same  position  which  they  occupied  before  the  return 
day  of  the  summons,  except  in  so  far  as  the  order  opening  the  default 
imposed  conditions  upon  the  defendant.  Levy  v.  Roossin,  93  App. 
Div.  387. 

Penalty  for  misconduct  of  officers  at  drawing  of  jurors  and  the  forma- 
tion of  a  jury.  See  Penal  Code,  §  76,  as  amended  by  Laws  1905, 
chap.  692. 

Right  and  waiver  of  jury  trial. —  Where  the  plaintiff  has  demanded  a 
jury  trial  and  subsequently  waived  the  jury,  owing  to  repeated  technical 
objections  to  the  array  interposed  by  the  defendant  such  defendant  is 
still  entitled  to  demand  a  jury  trial  and  it  is  reversible  error  for  the 
court  to  deny  such  application  and  proceed  with  the  trial  if  the  de- 
fendant offers  to  pay  the  fee  for  another  panel.  Both  parties  have 
a  right  to  a  jury  trial  in  said  court  and  such  trial  is  only  waived 
when  neither  party  makes  "a  demand  therefor.  The  plaintiff,  by  waiv- 
right.  Section  231  of  the  Municipal  Court  Act  does  not  require  both 
parties  to  demand  a  jury  trial  in  order  to  secure  the  rights  of  both 
thereto.     Sherwood  v.  New  York  Telephone  Co.,  46  Misc.  Rep.  102. 

Notes   to  section  233,   "Trial  Jurors;   List  of,  to  be  Furnished 
Clerk  of    Each  District." 

Exemption  from  jury  duty. —  A  professor  or  teacher  in  a  college  or 
academy,  or  an  editor,  editorial  writer,  artist,  or  reporter  of  a  daily 
newspaper  or  press  association  regularly  employed  as  such  and  not 
following  any  other  vocation.  Code  Civ.  Proc,  §  1030,  as  amended  by 
Laws  1905,  chap.  437,  to  go  in  effect  September  1,  1905. 

Also  teacher  in  public  school.  Code  Civ.  Proc,  §  1081,  as  amended 
by  Laws  1905,  chap.  437,  to  go  in  effect  September  1,  1905. 

Also  teacher  in  a  private  school.  Code  Civ.  Proc,  §  1127,  subd.  4, 
as  amended  by  Laws  1905,  chap.  437,  to  go  into  effect  September  1,  1905. 

Notes  to  section  239,  "Verdict;  Requisites." 

Entering  judgment  on  verdict. —  The  provision  of  section  239  of  the 
Municipal  Court  Act  (Laws  1902,  chap.  580)  that  judgment  "must  be 
entered  thereon  (on  a  verdict)  immediately  after  the  rendering  of  the 
verdict,"  is  directory  merely,  and  a   party  cannot  be  deprived  of  the 


§  240.  Trial;  Trial  Jurors.  93 

benefit  of  his  verdict  by  the  justice's  delay  or  refusal   to  render  the 
judgment.     Lyons  v.  Gavin,  43  Misc.  Rep.  659. 

Sufficiency  of  a  verdict  rendered  "  for  the  plaintiffs  "  but  not  for  a 
specific  sum. —  A  verdict  rendered  by  a  jury  in  an  action  tried  in  the 
Municipal  Court  of  the  city  of  New  York  to  recover  on  four  promissory 
notes  of  the  same  account,  date,  and  parties  and  which  came  into  the 
plaintiffs'  possession  at  the  same  time  and  under  the  same  circum- 
stances, in  the  form  "  the  jury,  upon  its  return,  renders  a  verdict  for 
the  plaintiffs,"  sufficiently  conforms  to  the  requirement  of  Laws  1902, 
chapter  580,  section  239,  that  a  verdict  in  said  court  "  must  be  general 
for  the  plaintiff  for  a  specific  sum,''  to  require  the  appellate  court  to 
allow  it  to  stand  where  no  question  as  to  the  form  of  the  verdict  was 
raised  on  the  trial  and  where  there  was  then  no  dispute  as  to  the 
amount  the  plaintiffs  were  entitled  to  recover,  if  they  were  entitled  to 
recover  at  all.     Steinhart  v.  Enteen,  43  Misc.  Rep.  388,  389. 

Notes  to  section  240,  "  Conduct  of  Trial." 

Carrier's  failure  to  maice  delivery  within  reasonable  time;  when  proof 
of  notice  to  consignee  of  arrival  of  goods  sufficient. —  The  clerk  of  the 
defendant  carrier  mailed  a  notice  of  arrival  of  goods  to  plaintiff's 
assignor.  Such  notice  was  returned  to  clerk  by  parties  to  whom  it  had 
been  delivered  by  mistake.  Said  clerk  immediately  mailed  another 
notice  to  plaintiff's  assignor  which  was  not  returned.  Thereafter  a 
third  notice  was  sent  which  resulted  in  the  delivery  of  the  goods. 
Held,  judgment  for  plaintiff  should  be  reversed  and  a  new  trial  granted. 
Plaintiff  was  aware  of  the  custom  of  carriers  to  give  notice  by  mail; 
and  the  plaintiff's  bookkeeper,  the  only  witness  as  to  lack  of  notice, 
was  uncorroborated  by  any  member  of  the  firm  of  plaintiff's  assignor. 
Friedman  v.  Metropolitan  SS.  Co.,  45  Misc.  Rep.  383. 

Carrier's  liability  for  value  of  freight  destroyed  by  fire;  whether  place 
of  delivery  is  determined  by  address  on  package  or  that  stated  in  bill 
of  lading;  custom  not  admissible  to  vary  terms  of  contract. —  Freight 
shipped  by  plaintiff  was  destroyed  by  fire  on  the  defendant  carrier's 
premises.  Defendant  gave  testimony  as  to  attempted  delivery  and  that 
the  consignee's  address  in  the  bill  of  lading  and  on  the  package  differed. 

Held,  that  the  rights  of  the  carrier  and  shipper  "  are  controlled  by  a 
contract  in  writing  delivered  to  the  shipper  by  the  carrier  at  the  time 
of  the  receipt  of  the  property.  The  admission  of  evidence  of  custom 
to  contradict  the  express  or  implied  terms  of  a  contract  is  error. 
Cappel  v.  Weir,  45  Misc.  Rep.  419. 

Carrier's  receipt  for  goods  construed;  proof  necessary  to  establish 
negligence. —  A  bill  of  lading,  which  states  that  the  goods  were  received 
by  the  carrier  "  in  apparent  good  order  *  *  *  contents  and  con- 
dition and  contents  of  package  unknown,"  is  no  acknowledgment  by  the 
carrier  that  the  goods  were  received  in  good  condition.     To  charge  a 


94  Trial;  Trial  Jurors.  §  240. 

carrier  with  negligence  it  is  necessary  to  show  the  condition  of  the 
goods  at  place  of  shipment.  Mere  proof  of  delivery  by  carrier  in  an 
injured  condition  is  not  enough.  Jean,  Garrison  &  Co.  v.  Flagg,  45 
Misc.  Rep.  421. 

Challenges  to  jurors. —  §  1179,  Code  Civil  Procedure.  In  an  action  in 
a  court  of  record,  or  not  of  record,  wherein  a  city,  town,  or  county  is 
a  party,  it  is  not  a  good  cause  of  challenge  to  a  trial  juror,  or  to  an 
officer  who  notified  the  trial  jurors,  that  the  juror  or  the  officer  is  a 
resident  of,  or  liable  to  pay  taxes  in  the  city,  town,  or  county,  which 
is  a  party  to  such  action.      (.4s  amended  by  Laws  1903,  chap.  294.) 

Collision;  when  question  of  negligence  for  the  jury. —  Plaintiff's  wagon 
being  driven  diagonally  across  defendant's  track  was  struck  and  injured 
by  defendant's  car  running  in  the  same  direction.  It  was  shown  that 
the  driver  had  looked  behind  him  before  he  left  the  curb  and  saw  the 
car  some  distance  to  the  rear  moving  at  a  moderate  rate  of  speed.  It 
was  also  shown  that  in  order  to  cross  the  tracks  the  defendant's  wagon 
would  only  have  had  to  travel  a  distance  of  from  twenty  to  fifty  feet. 
There  was  also  evidence  that  the  motorman  failed  to  ring  a  bell. 

Held,  under  the  circumstances,  the  question  of  negligence  was  one 
of  fact  for  the  jury,  not  one  of  law.  New  York  Bread  Co.  V.  New  York 
City  R.  Co.,  46  Misc.  Rep.  89. 

Compromise. —  No  advantage  can  be  taken  of  offers  made  by  way  of 
compromise  of  a  disputed  claim.  A  party  may,  with  impunity,  attempt 
to  buy  his  peace.  Tennent  V.  Dudley,  144  N.  Y.  504,  and  cases  cited; 
revg.  S.  C,  68  Hun,  225. 

Counsel  and  judge  in  examination  of  witness. —  While  it  is  often 
proper  and  advisable  for  a  trial  judge  to  interrogate  a  witness  for  the 
purpose  of  making  the  evidence  clear  upon  a  point,  as  to  which  it  has 
been  left  obscure  or  confused,  or  to  bring  out  material  facts  apparently 
within  the  knowledge  of  the  witness  and  overlooked  by  counsel,  this 
may  ordinarily  be  done  by  very  few  questions,  and,  in  the  main,  the 
counsel  should  be  left  to  conduct  the  examination.  People  V.  Hackett, 
82  App.  Div.  86. 

Discussion  or  a  remark  by  a  judge  in  the  course  of  a  judicial  opinion 
should  not  be  deemed  obiter,  when  it  is  germane  to  the  point  under 
discussion,  even  though  it  may  not  be  absolutely  essential  to  the  deci- 
sion.    Miller  V.  Baltimore  &  Ohio  R.  R.  Co.,  89  App.  Div.  458. 

Expert  witnesses;  credibility  of,  is  to  be  determined  by  the  jury. — 
A  judge  presiding  at  a  jury  trial,  after  two  duly  qualified  expert  wit- 
nesses had  testified  upon  the  subject  of  the  plaintiff's  damages,  said: 
"  There  is  no  use  calling  more  witnesses  like  these.  I  do  not  believe 
them;"  and  directed  a  verdict  for  nominal  damages  for  the  plaintiff. 

Held,  that  such  action  on  the  part  of  the  court  required  a  reversal 
of  the  judgment,  as  the  credibility  of  the  expert  witnesses  was  for  the 
jury  and  not  for  the  court  to  pass  upon.  Byerrum  V.  Springfield 
Breweries  Co.,  83  App.  Div.  172. 


§  240.  Trial;  Trial  Jurors.  95 

Discontinuance  upon  payment  of  costs;  leave  refused  a  plaintiff  where 
granting  it  might  possibly  give  him  an  unfair  advantage. —  A  plaintiff 
brought  an  action  in  the  Municipal  Court  of  the  city  of  New  York  for 
a  sum  greater  than  $250  and  that  action  was,  at  the  instance  of  the 
defendant,  removed  to  the  City  Court  of  said  city  under  Laws  1902, 
chapter  5S0,  section  3,  upon  the  ground  that  the  damages  claimed  ex- 
ceeded $250.  Afterward  the  plaintiff  brought  a  second  action  in  the 
Municipal  Court,  on  the  same  claim,  for  $249,  and  thereafter  asked  of, 
but  was  refused  by  the  City  Court,  leave  to  discontinue  the  first  action 
on  payment  of  costs.  Held,  that  leave  to  discontinue  the  City  Court 
action  was  properly  refused  as  the  conduct  of  the  plaintiff  indicated 
a  determination  to  try  the  case  in  the  Municipal  Court  and  justified  a 
suspicion  that  this  determination  rested  upon  the  belief,  ill-founded  if 
entertained,  that  the  defendant  would  be  at  greater  disadvantage  in 
that  court  than  in  the  City  Court.  Finkelstein  v.  Meenan,  43  Misc. 
Rep.  376. 

(The  law  for  removal  of  an  action  was  repealed  by  Laws  1904,  chap. 
598.) 

Money  had  and  received  by  defendant's  agent;  acceptance  by  plain- 
tiff or  agent's  check  for  surplus  payment,  does  not  discharge  defend- 
ant; demand. —  Plaintiff's  assignor,  owing  defendant  $750,  gave  a  check 
for  $900  to  defendant's  agent  and  took  from  said  agent  his  personal 
check  for  the  balance.  The  agent's  check  being  dishonored,  plaintiff 
sued  defendant.  Held,  as  defendant  received  plaintiff's  assignor's  check, 
with  knowledge  that  it  was  excessive  in  amount,  and  credited  its  agent 
with  the  amount  stated  by  him  to  have  been  repaid,  it  is  the  same  as 
if  plaintiff's  assignor  had  paid  the  amount  to  the  defendant.  That 
when  the  agent's  check  was  dishonored,  the  demand  against  the  defend- 
ant still  subsisted;  that  defendant's  reliance  on  its  agent's  statement 
that  the  excess  was  repaid  was  at  its  own  risk.  Rines  v.  New  York  & 
Brooklyn  Brewing  Co.,  45  Misc.  Rep.  415. 

Payment  is  an  affirmative  defense;  it  must  be  pleaded. —  Where  the 
answer  interposed  in  an  action  contains  no  plea  of  payment  or  partial 
payment  the  defendant  is  not  entitled  to  show  that  the  plaintiff  has 
been  paid  on  account  of  his  claim  a  greater  sum  than  the  amount  which 
the  plaintiff  admits  in  his  complaint  has  been  paid.  Payment  is  an 
affirmative  defense  which  must  be  specially  pleaded,  and,  in  the  absence 
of  such  a  special  plea,  evidence  thereof  is  not  admissible  under  a  gen- 
eral denial.    Rogers  v.  Simonson-  cC-  Son  Co.,  45  Misc.  Eep.  323. 

Pleading  as  evidence. —  It  is  not  necessary  to  introduce  a  pleading  in 
evidence  as  it  is  always  before  the  court,  and  its  admission  binds  the 
parties  without  its  formal  introduction  as  evidence.  Briggs  v.  Weeks, 
98  App.  Div.  487. 

Title  in  third  person  to  chattel. —  Where  the  defendants  set  up  in 
their  answer  title  in  a  third  person,  they  may  call  such  third  person 
as   a  witness,   irrespective  of  the   fact  that  the  third   person   did  not 


96  Judgments.  §  248. 

avail  himself  of  the  provisions  of  section  115a  of  the  Municipal  Court 
Act  authorizing  a  third  party  claiming  title  to  the  chattel  to  inter- 
plead and  defend.  In  such  a  case  the  omission  of  the  defendants  to 
demand  judgment  for  a  return  of  the  chattel  does  not  preclude  them 
from  maintaining  a  subsequent  action  to  regain  possession  of  the 
chattel,  subordinate  to  the  title  of  the  third  person.  Section  115a  of 
the  Municipal  Com  t  Act  does  not  affect  or  limit  section  117  of  that 
act.     Levy  v.  Hohweisner,  101  App.  Div.  82. 

Summary  proceedings. —  'Where  the  denials  contained  in  the  answers 
interposed  in  such  a  proceeding  are  objectionable  in  form  because  of 
the  violation  of  a  technical  rule  of  pleading,  but  are  not  misleading, 
the  party  interposing  such  an  answer  should  be  permitted  to  amend 
the  same.     Van  Deventer  v.  Foster,  87  App.  Div.  62. 

Value. —  "Where  the  identity  of  goods  is  lost,  their  agreed  cost  price 
is  evidence  of  their  value.     Goodman  v.  Bauman,  43  Misc.  Rep.  83. 

Notes  to  section  248,  "  Nonsuit;  when  Authorized." 

See  also  notes  to  sections  26,  330,  and  332. 

Costs  to  defendant  upon  voluntary  discontinuance  by  plaintiff;  inter- 
pretation of  sections  248  and  332,  Municipal  Court  Act. —  Blum  v. 
0' Conner,  N.  Y.  Law  Journal,  July  1,  1903,  Supreme  Court,  Appellate 
Term,  June,  1903,  opinion  by  Fkeedman,  P.  J.  This  case  is  not  reported 
elsewhere.  See  also  Barry  v.  Winkle,  36  Misc.  Rep.  171;  Levine  V. 
Hahner,  62  App.  Div.  195;  McCuskie  v.  Eendrickson,  125  N.  Y.  555. 

Costs  on  discontinuance  of  summary  proceedings. —  Where  a  land- 
lord voluntarily  discontinues  before  final  submission  summary  pro- 
ceedings taken  by  him  in  the  Municipal  Court  of  the  city  of  New  York 
since  the  passage  of  Laws  1902,  chapter  580,  the  tenant  is  entitled  as 
costs  to  his  actual  disbursements  to  the  extent  of  $10  besides  the  fees 
of  any  witnesses  attending  from  another  county,  and  this  under  Code 
Civil  Procedure,  section  3076,  subdivision  2.  Cohen  v.  Melle,  43  Misc. 
Rep.  79. 

Erroneous  judgment. —  A  plaintiff  who  does  not  prove  his  case  in  this 
court  should  be  nonsuited,  but  it  is  erroneous  for  the  court  to  render  a 
judgment  for  defendant.  The  Egyptian  Flag  Cigarette  Co.  v.  Comisky, 
40  Misc.  Rep.  236. 

Leave  to  discontinue  refused  a  plaintiff  where  granting  it  might  pos- 
sibly give  him  an  unfair  advantage. —  A  plaintiff  brought  an  action  in 
this  court  for  a  sum  greater  than  $250,  and  that  action  was,  at  the 
instance  of  the  defendant,  removed  to  the  City  Court  of  said  city  under 
Laws  1902,  chapter  580,  section  3,  upon  the  ground  that  the  damages 
claimed  exceeded  $250.  Afterward  the  plaintiff  brought  a  second  action 
in  the  Municipal  Court,  on  the  same  claim,  for  $249,  and  thereafter 
asked  of,  but  was  refused  by  the  City  Court,  leave  to  discontinue  the 
first  action  on  payment  of  costs.  Held,  that  leave  to  discontinue  the 
City  Court  action  was  properly  refused  as  the  conduct  of  the  plaintiff 


§§  249, 250.  Judgments.  97 

indicated  a  determination  to  try  the  case  in  the  Municipal  Court  and 
justified  a  suspicion  that  this  determination  rested  upon  the  belief, 
ill-founded  if  entertained,  that  the  defendant  would  be  at  greater  dis- 
advantage in  that  court  than  in  the  City  Court.  Finkclstein  v.  Meenan, 
43  Misc.  Rep.  376. 

(The  law  for  removal  of  an  action  was  repealed  by  Laws  1904,  chap. 
548.) 

Right  to  discontinue  on  payment  of  costs. —  A  plaintiff  has  an  abso- 
lute right  to  discontinue  an  action,  brought  in  this  court,  at  any  time 
before  it  is  finally  submitted  upon  payment  of  costs,  and  this  although 
the  defendant  has  interposed  a  counterclaim.  The  Municipal  Court 
Act  (Laws  1902,  chap.  580)  has  made  no  change  in  this  respect. 
Nichols  v.  Williams,  42  Misc.  Rep.  527. 

Notes  to  section  249,"  Judgment  of  Dismissal  on  Merits;  when." 

Close  of  case. —  An  action  in  this  court  may  be  dismissed  on  the 
merits  with  costs  where,  at  the  close  of  the  whole  case,  the  court  is  of 
the  opinion  that  the  plaintiff  is  not  entitled  to  recover  as  matter  of  law. 

The  record  should,  however,  show  that  both  parties  had  rested  when 
the  motion  for  a  dismissal  was  made.  Cohen  v.  Boccuzzi,  42  Misc. 
Rep.  544. 

Judgment;  when  it  is  on  the  merits;  motion  to  amend  it;  when  a 
defendant  is  entitled  to  costs. —  Where  the  defendant  in  an  action  to 
recover  the  contract  price  of  certain  work,  which,  by  the  terms  of  the 
contract,  was  to  be  completed  on  or  before  August  18,  1903,  denies  that 
the  work  has  ever  been  completed  according  to  the  contract,  and  inter- 
poses a  counterclaim  for  damages  incident  to  the  work,  and  the  justice 
before  whom  the  case  was  tried  without  a  jury  renders  a  decision 
"  Dismissing  the  complaint  on  the  ground  this  action  is  prematurely 
brought,  the  work  not  being  completed  according  to  the  contract,  and 
judgment  for  the  defendant  on  the  counterclaim  for  the  sum  of  $25, 
without  costs,"  such  judgment  operates  as  a  dismissal  of  the  complaint 
upon  the  merits.  In  such  a  case  the  defendant  is  entitled,  under  sub- 
divisions 2  and  5  of  section  332  of  chapter  580  of  the  Laws  of  1902, 
the  Municipal  Court  Act,  to  $15  costs.  Reugamer  v.  Cieslinskie,  104 
App.  Div.   135. 

Notes  to  section  250,  "Judgment;  when  Sum  Exceeds  Jurisdic- 
tion." 

Jurisdiction;  amount  involved;  remission  of  excess. — Where  both  the 
summons  and  the  complaint  in  an  action  commenced  in  this  court 
demand  judgment  for  $500  and  interest,  a  denial  of  a  motion  to  dis- 
miss the  complaint  upon  the  ground  of  want  of  jurisdiction  is  rever- 
sible error.  The  provision  of  section  250  of  the  Municipal  Court  Act, 
permitting  a  part}7  to  remit  the  excess  if  the  sum  found  due  "  exceeds 

7 


98  Judgments.  §§  251-253. 

the  sum  for  which  the  court  is  authorized  to  enter  judgment,"  applies 
only  to  cases  where  said  court  has  acquired  jurisdiction  in  the  first 
instance.     Smith  v.  Dunn,  46  Misc.  Rep.  475. 

Remitting  excess. —  Plaintiff  sued  to  recover  $507.33,  and  recovered 
$294.37,  which  included  damages  and  costs.  Held,  it  was  improper  to 
reverse  the  judgment  because  the  plaintiff  sued  for  a  greater  amount 
than  $500,  as  he  was  at  liberty  under  this  section  to  remit  the  excess 
over  $500.    Hamburger  v.  Hellman,  103  App.  Div.  263. 

Notes    to    section   251,    "Judgment    where    Defendant   Liable   to 

Arrest." 

Execution  must  be  issued;  when;  discharge. —  Plaintiff  obtained  an 
order  of  arrest,  recovered  judgment,  but  failed  to  issue  execution  before 
the  expiration  of  twenty-four  hours  after  he  obtained  the  judgment, 
held  that  defendant,  although  out  on  bail,  is  entitled  to  be  discharged 
under  section  68.  Held,  also,  that  such  discharge  does  not  defeat  plain- 
tiff's right  to  the  subsequent  issue  of  a  body  execution  upon  the  judg- 
ment under  section  271.    Rogoio  v.  Clark,  40  Misc.  Rep.  208. 

Notes  to  section  253,  "  Court  May  Open  Default." 

See  also  section  256,  "Court  May  Impose  Conditions,  etc." 

Judgment  by  default  is  appealable. —  Defendant  may  appeal  from 
judgment  taken  against  herby  default,  but  is  prohibited  by  section  257 
from  an  appeal  from  an  order  opening  the  default.  Lang  B.  P.  Co.  v. 
Crossly,  40  Misc.  Rep.  249. 

Judgment  by  default  is  not  appealable. —  The  Municipal  Court  Act 
(Laws  1902,  chap.  580)  contains  no  provision  permitting  an  appeal 
from  a  judgment  taken  by  default  in  an  action  in  the  Municipal  Court 
of  the  city  of  New  York,  and  such  an  appeal  is  no  longer  permissible. 

A  defendant,  who  has  appeared  in  the  action,  but  who  has  defaulted 
in  answering,  who  desires  a  review  of  an  order  denying  vacation  of  an 
attachment  issued  in  the  action  against  his  property  must  first  have 
his  default  opened.    Broicn  V.  Bouse,  43  Misc.  Rep.  72. 

Jury  trial  may  be  demanded  after  a  default  has  been  opened.  Levy 
V.  Roossin,  93  App.  Div.  387. 

Order  by  the  court. —  Section  253  of  the  Municipal  Court  Act,  au- 
thorizing the  opening  of  defaults  or  omissions  on  such  notice  as  the 
court  may  direct,  contemplates  an  order  by  the  court  in  which  the 
default  was  taken.    Matter  of  Bolte,  97  App.  Div.  551,  552. 

Restoring  case  to  calendar. —  Where  certain  cases  in  this  court  were 
dismissed  for  nonappearance  of  either  party  within  the  time  required, 
the  justice  had  no  authority  to  restore  the  causes  to  the  calendar  and 
proceed  to  the  trial  thereof,  except  by  defendant's  express  consent  or 
by  his  voluntary  appearance  without  objection  after  service  of  a  notice 
of  motion  on  him  for  reinstatement.  Eichner  v.  Cohen,  91  N.  Y.  Supp. 
357. 


§  254.  Judgments.  99 

Reviewing  decision  of  another  justice;  exception  to  the  rule.— The 
rule  that  one  justice  of  this  court  cannot  review  the  decision  of  another 
justice  does  not  apply  to  a  case  where,  after  the  defendant's  motion 
to  open  his  default  has  been  denied,  as  he  alleges,  upon  affidavits  sur- 
reptitiously handed  to  the  justice  by  or  for  the  plaintiff  after  the  argu- 
ment of  the  motion  and  because  of  the  justice's  misconception  that 
the  defendant  had  paid  the  judgment  voluntarily,  the  defendant  ap- 
plies, without  leave  from  that  justice,  for  leave  to  reargue  and  for  a 
reargument  of  the  motion  to  another  justice  brought,  within  eighteen 
days,  into  the  Municipal  Court  district  by  the  system  of  rotation  in 
the  assignment  of  its  justices,  who  granted  a  reargument  and  also 
vacated  the  order  of  the  first  justice  denying  the  motion  to  open  the 
default  —  as  the  motion  before  the  incoming  justice  is  under  the  cir- 
cumstances to  be  deemed  practically  a  separate  motion  made  on  different 
or  additional  facts.    Stromberg  v.  Di  Salvo,  38  Misc.  Rep.  139. 

Setting  case  down  for  trial. —  An  order  opening  a  plaintiff's  default  in 
this  court  may  lawfully  provide  that  the  case  be  set  down  for  trial 
upon  a  day  certain.     Horowitz  v.  Fuchs,  39  Misc.  Rep.  344. 

Notes  to  section  254,  "  Motion  to  Set  Aside  Verdict,  or  Vacate, 
or  Amend  Judgment." 

Costs;  where  a  verdict  is  set  aside  as  against  the  weight  of  evidence. 
—  The  question  whether  a  judge  presiding  at  a  jury  trial  shall  impose 
costs  as  a  condition  of  setting  aside  a  verdict  on  the  ground  that  it  is 
against  the  weight  of  evidence  is  a  matter  which  rests  in  his  sound 
discretion.    Lashaway  v.  Young,  76  App.  Div.  177. 

Expiration  of  judge's  term;  successor  may  determine  motion. —  An 
order  vacating  a  judgment  of  this  court  made  by  a  justice  of  said  court 
after  the  expiration  of  his  term  of  office  is  a  nullity.  Under  the  pro- 
visions of  section  16  of  the  Municipal  Court  Act,  read  in  conjunction 
with  section  254,  a  motion  to  set  aside  a  judgment  of  said  court  and 
for  a  new  trial,  pending  before  and  undecided  by  a  justice  thereof  at 
the  expiration  of  his  term  of  office,  may  be  heard  and  determined  by 
his  successsor  in  office.     Gordon  v.  Trainor,  46  Misc.  Rep.  439. 

Supplementary  proceedings  on  a  judgment  recovered  in  this  court,  a 
transcript  of  which  was  docketed  in  the  county  clerk's  office;  the  Su- 
preme Court  may  set  them  aside,  but  cannot  vacate  the  judgment. — 
Where  a  transcript  of  a  judgment  recovered  by  default  in  the  Municipal 
Court  of  the  city  of  New  York,  for  the  borough  of  Brooklyn,  is  dock- 
eted in  the  office  of  the  clerk  of  the  county  of  Kings,  under  section  1369 
of  the  Greater  New  York  Charter  (Laws  of  1897,  chap.  378)  and  sec- 
tions 3017  and  3220  of  the  Code  of  Civil  Procedure,  and,  after  the  return 
of  an  execution  unsatisfied,  supplementary  proceedings  are  instituted 
thereunder,  the  Supreme  Court  is  without  jurisdiction  to  vacate  the 
judgment  on   the   ground   that   the   judgment   debtor   had    never   been 


100  Judgments  §  256. 

served  with  the  summons  and  complaint.  The  Supreme  Court  has 
jurisdiction,  however,  to  stay  or  set  aside  the  execution  and  the  sup- 
plementary proceedings,  as  those  matters  flowed  out  of  the  filing  of 
the  transcript  and  of  the  docketing  of  the  judgment.  Johnson  v. 
Manning,  Xo.  1,  75  App.  Div.  285. 

Time  of  making  motion  to  set  aside  judgment. —  A  motion  to  set 
aside  a  judgment  rendered  in  this  court  dismissing  the  complaint,  if 
not  made  at  the  close  of  the  trial,  must  be  actually  made  within  five 
days  from  the  time  the  judgment  was  rendered  and  upon  two  days' 
notice,  and  it  is  not  a  sufficient  compliance  with  the  Municipal  Court 
Act  (Laws  1902,  chap.  580,  §  254)  that  the  notice  of  motion  was  given 
within  the  five  days.  A  notice  of  motion  is  distinct  from  the  motion 
itself.     Buschbaum  v.  Feldman,  43  Misc.  Rep.  85. 

Vacating  judgment  not  rendered  in  time. —  Where  a  justice  renders 
judgment  in  a  case  tried  before  him,  which  judgment  is  void  because  it 
was  not  rendered  within  the  fourteen  days  prescribed  by  section  230 
of  the  Municipal  Court  Act  (Laws  1902,  chap.  580),  the  justice  has 
power,  under  section  254  of  that  act,  to  make  an  order  vacating  such 
judgment.  Such  order  is  appealable  to  the  Appellate  Division  under 
section  257  of  the  Municipal  Court  Act. 

Upon  such  an  appeal  the  court  is  bound  by  the  contents  of  the  return 
made  by  the  justice,  and  cannot  consider  statements  in  the  appellant's 
brief,  not  supported  by  the  return,  tending  to  show  that  the  judgment 
was  rendered  within  the  statutory  time.  Stern  v.  Fleck,  102  App. 
Div.  272. 

Vacating  judgment  because  material  witness  for  defeated  party  did 
not  appear  on  the  trial. —  Under  Laws  1896,  chapter  748,  which  amend 
section  1367  of  the  Consolidation  Act  (Laws  1882,  chap.  410),  and 
which  provided  that  a  motion  to  vacate  or  modify  any  judgment  ren- 
dered upon  a  trial  by  the  court  without  a  jury,  may  be  made  for  the 
causes  specified  in  section  999  of  the  Code  of  Civil  Procedure,  it  was 
held  that  section  did  not  authorize  the  setting  aside  of  a  verdict  or 
judgment  because  of  the  failure  of  one  of  the  moving  party's  material 
witnesses  to  appear  at  the  trial.    Erichsen  v.  Sidle,  76  App.  Div.  347. 

Weight  of  evidence. —  Under  section  254  this  court  has  power  to  set 
aside  a  verdict  and  grant  a  new  trial  in  an  action  on  the  ground  that 
the  verdict  is  against  the  weight  of  evidence.  Newbound  v.  Interurban 
B.  R.  Co.,  42  Misc.  Rep.  525. 

Notes  to  section  256,  "  Court  May  Impose  Conditions,  et  cetera." 

See  also  section  253,  "  Court  May  Open  Default,"  and  notes. 

Jury  trial  may  be  demanded  after  a  default  has  been  opened.  Levy 
V.  Roossin,  93  App.  Div.  387. 

Security. —  The  order  may  lawfully  provide  that  the  judgment  stand 
as  security.    Long  Branch  Pier  Co.  v.  Crossley,  40  Misc.  Rep.  249. 


§  257.  Judgments.  101 

Notes  to  section  257. 

( This  section  has  no  heading  in  the  act  but  should  be  headed  "  What 
Orders  are  Appealable.") 

Arrest. —  Order  denying  motion  to  vacate  order  of,  is  not  appealable. 
Eyman  V.  Segal,  44  Misc.  Rep.  226. 

Judgment  by  default  is  appealable. —  In  an  action  begun  in  this  court 
after  September  1,  1902,  when  the  Municipal  Court  Act  (Laws  1902, 
chap.  580)  went  into  effect,  the  defendant  may  appeal  from  a  judgment 
taken  against  her  upon  her  default,  but  it  is  prohibited  by  section  257 
of  said  statute  from  an  appeal  from  an  order  opening  her  default. 
Long  Branch  Pier  Co.  v.  Crossley,  40  Misc.  Rep.  249.  See  also  Beebe 
v.  Nassau  Show  Case  Co.,  41  App.  Div.  45G. 

Judgment  by  default  is  not  appealable. —  The  Municipal  Court  Act 
(Laws  1902,  chap.  580)  contains  no  provision  permitting  an  appeal 
from  a  judgment  taken  by  default  in  that  court,  and  such  an  appeal 
is  no  longer  permissible.  A  defendant  who  has  appeared  in  the  action, 
but  who  has  defaulted  in  answering,  who  desires  a  review  of  an  order 
denying  vacation  of  an  attachment  issued  in  the  action  against  his 
property  must  first  have  his  default  opened.  Brown  v.  Bouse,  43  Misc. 
Rep.  72. 

Order  opening  default  not  appealable. —  The  right  of  a  person  who, 
prior  to  the  time  when  the  New  York  Municipal  Court  Act  (Laws 
1902,  chap.  580,  §  257)  took  effect,  had  recovered  a  judgment  in  that 
court  by  default  to  appeal  from  an  order  opening  the  default  and 
setting  aside  the  judgment,  was  preserved  by  section  361  of  the 
Municipal  Court  Act.  Such  an  appeal  no  longer  lies.  The  failure  of 
the  order  opening  the  default  and  setting  aside  the  judgment  to 
recite  the  grounds  upon  which  it  was  granted,  as  required  by  section 
1367  of  the  Consolidation  Act,  constitutes  a  fatal  defect.  Johnson  v. 
Manning,  80  App.  Div.  368. 

(Section  1367  of  the  Consolidation  Act  is  now  contained  in  sec- 
tions 253  and  256  of  the  Municipal  Court  Act,  with  the  exception  that 
the  order  need  not  recite  the  grounds.) 

In  an  action  begun  after  September  1,  1902,  when  the  Municipal  Court 
Act  (Laws  1902,  chap.  580)  went  into  effect,  the  defendant  may  appeal 
from  a  judgment  taken  against  her  upon  her  default,  but  is  prohibited 
by  section  257  from  an  appeal  from  an  order  opening  her  default. 
Long  Branch  Pier  Co.  v.  Crossley,  40  Misc.  Rep.  249. 

What  orders  are  appealable. —  An  order  of  a  justice  of  this  court 
denying  a  motion  to  vacate  an  order  of  arrest  is  not  appealable,  as 
such  an  order  is  not  enumerated  in  the  Municipal  Court  Act  (Laws 
1902,  chap.  580,  §§  253,  254,  255,  256,  257). 

The  scope  of  section  20  of  said  act  considered.     Lewvitt  v.   Katzoff, 

43  Misc.  Rep.  26;  S.  C,  86  N.  Y.  Supp.  495.     See  also  Eyman  v.  Segal, 

44  Misc.  Rep.  226,  and  Manelly  V.  Mayers,  43  Misc.  Rep.  380. 


102  Execution.  §§  260, 261. 

Order  vacating  judgment  not  rendered  in  time. —  Where  a  justice  ren- 
ders judgment  in  a  case  tried  before  him,  which  judgment  is  void 
because  it  was  not  rendered  within  the  fourteen  days  prescribed  by 
section  230  of  the  Municipal  Court  Act  (Laws  1902,  chap.  580),  the 
justice  has  power,  under  section  254  of  that  act,  to  make  an  order 
vacating  such  judgment.  Such  order  is  appealable  to  the  Appellate 
Division  (Second  Department)  under  section  257  of  the  Municipal 
Court  Act.    Stem  v.  Fleck,  102  App.  Div.  272. 

§  260.  Execution;  how  issued — ,  An  execution  may  be 
issued  on  a  judgment  of  the  Municipal  Court  at  the  option 
of  the  judgment  creditor,  either  by  the  county  clerk  directed 
to  the  sheriff  as  prescribed  by  law,  after  the  filing  of  a 
transcript  of  judgment,  as  provided  in  the  next  section,  or 
by  the  clerk  of  the  Municipal  Court  in  the  district  in  which 
the  judgment  was  entered,  within  six  years  thereafter,  di- 
rected to  a  marshal.  But  no  execution  shall  issue  out  of 
the  Municipal  Court  after  a  transcript  has  been  issued,  and 
no  transcript  shall  be  issued  while  an  execution  of  the  Munici- 
pal Court  remains  unreturned,  except  a  transcript  showing 
that  a  judgment  has  been  vacated,  set  aside  or  modified.  The 
prospective  fees  of  the  county  clerk  and  sheriff  must  be 
omitted  when  an  execution  is  issued  to  a  marshal.  (As 
amended  by  Laws  1903,  chap.  144.  See  notes  to  section 
271.) 

Notes  to  section  261,  "Transcript,  how  to   Issue;  Judgment  of 
Supreme  Court,  when  Docketed." 

Supplementary  proceedings  on  a  judgment  recovered  in  a  Municipal 
Court,  a  transcript  of  which  was  docketed  in  the  county  clerk's  office; 
the  Supreme  Court  may  set  them  aside,  but  cannot  vacate  the  judg- 
ment.—  Where  a  transcript  of  a  judgment  recovered  by  default  in  this 
court  for  the  borough  of  Brooklyn  is  docketed  in  the  office  of  the  clerk 
of  the  county  of  Kings,  under  section  1369  of  the  Greater  New  York 
Charter  (Laws  1897,  chap.  378)  and  sections  3017  and  3220  of  the 
Code  of  Civil  Procedure,  and,  after  the  return  of  an  execution  unsatis- 
fied, supplementary  proceedings  are  instituted  thereunder,  the  Supreme 
Court  is  without  jurisdiction  to  vacate  the  judgment  on  the  ground 
that  the  judgment  debtor  had  never  been  served  with  the  summons  and 
complaint.  The  Supreme  Court  has  jurisdiction,  however,  to  stay  or 
set  aside  the  execution  and  the  supplementary  proceedings,  as  those 


§§  263-271.  Execution.  103 

matters  flowed  out  of  the  filing  of  the  transcript  and  of  the  docketing 
of  the  judgment.     Johnson  v.  Manning,  No.  1,  75  App.  Div.  285. 

Notes  to  section  263,  "  Real  Property  Bound  for  Ten  Years  by  a 
Judgment  thus  Docketed." 

Lien  of  judgments;  by  Laws  1905,  chapter  432,  section  1251  of  the 
Code  of  Civil  Procedure  was  amended  so  as  to  read  as  follows: 

§  1251.  Except  as  otherwise  specially  prescribed  by  law,  and  except 
also  as  in  this  section  below  provided,  a  judgment,  hereafter  rendered, 
which  is  docketed  in  a  county  clerk's  office,  as  prescribed  in  this  article, 
binds,  and  is  a  charge  upon,  for  ten  years  after  filing  the  judgment 
roll,  and  no  longer,  the  real  property  and  chattels  real,  in  that  county, 
which  the  judgment  debtor  has  at  the  time  of  so  docketing  it,  or  which 
he  acquires  at  any  time  afterwards,  and  within  the  ten  years.  Pro- 
vided however  that  no  judgment  shall  be  a  charge  upon  or  bind  the 
real  property  of  any  person  unless  and  until  he  be  designated  by  his 
name  in  a  docket  of  such  judgment  in  the  office  of  the  clerk  in  the 
county  where  such  property  is.  Upon  such  notice  to  a  judgment  debtor 
as  the  court  may  direct  the  supreme  court  may  order  that  any  judg- 
ment heretofore  or  hereafter  rendered  therein  against  such  debtor  be 
amended  so  as  to  designate  such  debtor  by  his  name  and  that  the 
clerk  of  the  county  in  which  the  judgment  roll  is  filed  redocket  such 
judgment  as  so  amended;  and  from  the  time  of  such  redocket  during 
the  remainder  of  ten  years  from  the  filing  of  the  judgment  roll,  such 
judgment  shall  bind  and  be  a  charge  upon  the  real  property  and  chat- 
tels real  in  that  county  which  such  judgment  debtor  may  have  at  the 
time  of  such  redocket  or  may  thereafter  within  said  ten  years  acquire, 
and  a  transcript  of  such  new  docket  may  be  filed  and  docketed  in  the 
office  of  the  clerk  of  any  other  county  in  the  state  in  like  manner  and 
with  like  effect  as  a  transcript  of  an  original  docket  may  be  filed. 
Upon  such  notice  to  a  judgment  debtor  as  the  court  may  direct  any 
court  other  than  the  supreme  court  may  order  that,  any  judgment 
heretofore  or  hereafter  rendered  therein  against  such  debtor  and  any 
docket  thereof  in  such  court  be  amended  so  as  to  designate  such  debtor 
by  his  name,  and  at  any  time  after  such  amendment  shall  have  been 
made  a  transcript  of  the  docket  of  such  judgment  as  so  amended  may 
be  filed  and  docketed  in  the  office  of  the  clerk  of  any  county  in  this 
state  in  like  manner  and  with  like  effect  as  a  transcript  of  an  original 
docket  may  be  filed. 

Notes  to  section  271,  "  Execution;  Requisites." 

Additional  personal  property  exempt  in  certain  cases. —  In  addition 
to  the  exemptions,  allowed  by  the  last  section,  necessary  household  fur- 
niture, working  tools  and  team,  professional  instruments,  furniture  and 
library,  not  exceeding  in  value  two  hundred  and  fifty  dollars,  together 


104  Execution.  §  271. 

with  the  necessary  food  for  the  team,  for  ninety  days,  are  exempt  from 
levy  and  sale  by  virtue  of  an  execution,  when  owned  by  a  person,  being  a 
householder,  or  having  a  family  for  which  he  provides,  except  where  the 
execution  is  issued  upon  a  judgment,  recovered  wholly  upon  one  or  more 
demands,  either  for  work  performed  in  the  family  as  a  domestic  or  for 
the  purchase  money,  of  one  or  more  articles,  exempt  as  prescribed  in  this 
or  the  last  section.  Where  a  judgment  has  been  recovered  wholly  for 
necessaries  sold,  or  work  performed  in  a  family  as  a  domestic,  or  for 
services  rendered  for  salary  owing  to  an  employe  of  the  judgment 
debtor,  and  where  an  execution  issued  upon  said  judgment  has  been 
returned  wholly  or  partly  unsatisfied  and  where  any  wages,  debts, 
earnings,  salary,  income  from  trust  funds  or  profits  are  due  and  owing  to 
the  judgment  debtor  or  shall  thereafter  become  due  and  owing  to  him,  to 
an  amount  exceeding  twelve  dollars  per  week  and  where  no  execution  is- 
sued as  hereafter  provided  for  in  this  section  is  unsatisfied  and  out- 
standing against  said  judgment  debtor,  the  judgment  creditor  may  ap- 
ply to  the  court  in  which  said  judgment  was  recovered  or  the  court 
having  jurisdiction  of  the  same  without  notice  to  the  judgment  debtor, 
and  upon  satisfactory  proof  of  such  facts  by  affidavits  or  otherwise, 
the  court,  if  a  court  not  of  record,  a  judge  or  justice  thereof,  must 
issue,  or  if  a  court  of  record,  a  judge  or  justice,  must  grant  an  order 
directing  that  an  execution  issue  against  the  wages,  debt,*  earnings, 
salary,  income  from  trust  funds  or  profits  of  said  judgment  debtor, 
and  on  presentation  of  such  execution  by  the  officer  to  whom  delivered 
for  collection  to  the  person  or  persons  from  whom  such  wages,  debts, 
earnings,  salary,  income  from  trust  funds  or  profits  are  due  and  owing, 
or  may  thereafter  become  due  and  owing  to  the  judgment  debtor,  said 
execution  shall  become  a  lien  and  a  continuing  levy  upon  the  wages, 
earnings,  debts,  salary,  income  from  trust  funds  or  profits  due  or  to 
become  due  to  said  judgment  debtor  to  the  amount  specified  therein 
which  shall  not  exceed  ten  per  centum  thereof,  and  said  levy  shall  be 
a  continuing  levy  iintil  said  execution  and  the  expenses  thereof  are  fully 
satisfied  and  paid  or  until  modified  as  hereinafter  provided.  It  shall 
be  the  duty  of  any  person  or  corporation  municipal  or  otherwise  to 
whom  said  execution  shall  be  presented,  and  who  shall  at  such  time 
be  indebted  to  the  judgment  debtor  named  in  such  execution,  or  who 
shall  become  indebted  to  such  judgment  debtor  in  the  future,  and  while 
said  execution  shall  remain  a  lien  upon  said  indebtedness  to  pay  over 
to  the  officer  presenting  the  same,  such  amount  of  such  indebtedness 
as  such  execution  shall  prescribe  until  said  execution  shall  be  wholly 
satisfied  and  such  payment  shall  be  a  bar  to  any  action  therefor  by 
any  such  judgment  debtor.  If  such  person  or  corporation  municipal 
or  otherwise  to  whom  said  execution  shall  be  presented  shall  fail,  or 
refuse  to  pay  over  to   said  officer   presenting  said   execution,  the  per- 

*So  in  original. 


§  271.  Execution.  105 

centage  of  said  indebtedness,  he  shall  be  liable  to  an  action  therefor 
by  the  judgment  creditor  named  in  such  execution,  and  the  amount  so 
recovered  by  such  judgment  creditor  shall  be  applied  towards  the  pay- 
ment of  said  execution.  Either  party  may  apply  at  any  time  to  the 
court  from  -which  such  execution  shall  issue,  or  to  any  judge  or  justice 
i6euing  the  same,  or  to  the  county  judge  of  the  county,  and  in  any 
county  where  there  is  no  county  judge,  to  any  justice  of  the  city  court 
upon  such  notice  to  the  other  party  as  such  court,  judge,  or  justice 
shall  direct  for  a  modification  as*  said  execution,  and  upon  such  hear- 
ing the  said  court,  judge  or  justice  may  make  such  modification  of 
the  said  execution  as  shall  be  deemed  just,  and  such  execution  as  so 
modified  shall  continue  in  full  force  and  effect  until  fully  paid  and 
satisfied,  or  until  further  modified  as  herein  provided.  Code  Civ.  Proc, 
§  1391,  as  amended  by  Laics  1905,  chap.  175.  Passed  April  11,  1905, 
to  take  effect  immediately. 

Action  for  refusing  to  pay  wages  of  judgment  debtor. —  A  complaint 
in  an  action  brought  under  the  authority  of  the  last  sentence  of  section 
1391  of  the  Code  of  Civil  Procedure,  as  amended  by  chapter  461  of  the 
Laws  of  1903,  against  a  person  or  corporation  refusing  to  honor  an 
execution  issued  against  the  wages  of  a  judgment  debtor  pursuant  to 
that  section,  is  demurrable  if  it  fails  to  allege  that  no  prior  similar 
execution  against  the  judgment  debtor  is  outstanding.  Rosenslock  v. 
City  of  New  York,  97  App.  Div.  337.  See  also  King  v.  Irving,  103  App. 
Div.  421. 

Amount  to  be  levied  upon  must  be  stated  in  execution  against  the 
wages  or  salary  of  a  judgment  debtor. —  The  sheriff  is  not  bound  to 
accept  an  execution  if  it  fails  to  specify  a  definite  or  the  precise  amount 
to  be  levied  upon,  and  a  direction  to  levy  "  to  the  extent  of  ten  per 
centum  of  the  debtor's  salary  due  and  owing  to  him  from  the  Nassau 
Bank "  is  unwarranted.  The  execution  is  a  lien  on  the  amount  of 
wages  or  salary  of  the  debtor  as  it  becomes  periodically  due,  to  the 
extent  of  the  sum  fixed  by  the  justice,  which  sum  is  not  to  exceed  10 
per  cent,  of  such  periodic  salary  or  wage,  and  the  execution  to  the 
extent  of  said  sum  so  fixed  is  made  a  lien  upon  each  successive  amount 
of  wages  as  it  became  due,  said  sum  being  subject  to  levy  thereunder, 
until  the  whole  amount  of  the  judgment  and  expenses  shall  be  paid. 
To  render  the  provisions  of  this  enactment  effective,  it  is  evident  that 
it  is  necessary  to  have  the  execution  specify  the  amount  to  be  levied 
upon  periodically  and  the  words  in  the  act  "  the  amount  specified 
therein  "  clearly  relate  to  the  amount  to  be  fixed  by  the  justice  after 
considering  the  facts  presented  to  him  in  the  affidavit  of  the  judgment 
debtor.  Justice  Greenbaum,  Supreme  Court,  Special  Term,  Part  I,  in 
Wedelin  v.  Erlanger,  Sheriff,  N.  Y.  Law  Journal,  May  23,  1905. 

*  So  in  original. 


106  Execution.  §  271. 

Articles  used  by  undertaker  in  business;  exemption;  question  for 
jury. —  Where  in  an  action  against  a  sheriff  for  seizing,  upon  execution, 
personal  property  in  value  less  than  §250,  used  in  plaintiff's  business 
as  an  undertaker  and  claimed  by  him  to  be  exempt  under  section  1391 
of  the  Code  of  Civil  Procedure,  of  which  claim  the  sheriff  was  notified 
before  the  sale,  the  evidence  tends  to  support  the  complaint,  it  is  for 
the  jury  to  determine  the  character  of  the  property,  and  the  direction 
of  a  verdict  for  defendant  is  error.  O'Reilly  v.  Erlanger,  46  Misc.  Rep. 
278.  See  Clark  v.  Smith,  31  Misc.  Rep.  495;  Field  v.  Ingraham,  15 
Misc.  Rep.  531;  Kntipp  v.  O'Neill,  46  Hun,  317;  Gilewicz  v.  Goldberg, 
69  App.  Div.  439. 

Constitutionality. —  Section  1391,  Code  of  Civil  Procedure,  is  con- 
stitutional. Sloane  v.  Tiffany,  103  App.  Div.  540;  King  v.  Irving,  103 
App.  Div.  420. 

Execution  against  the  body;  subsequent  issue;  construction  of  sec- 
tion 68;  Code  of  Civil  Procedure,  section  572,  inapplicable  to  this  court. — 
Where  a  plaintiff,  who,  in  October,  1902,  procured  an  order  of  arrest  in 
an  action  in  this  court  and  thereafter  recovered  judgment  agairst  the 
defendant,  fails  to  take  out  an  execution  upon  the  judgment  before  the 
expiration  of  twenty-four  hours  after  he  was  entitled  to  the  judgment, 
the  defendant,  although  he  has  given  bail,  is  entitled  to  his  discharge 
under  Laws  1902,  chapter  580,  section  68.  His  discharge  does  not 
defeat  the  right  of  the  plaintiff  to  the  subsequent  issue  of  a  body  execu- 
tion upon  the  judgment,  in  the  form  prescribed  by  Laics  1902,  chapter 
580,  section  271.  Code  Civil  Procedure,  section  572,  does  not  apply  to 
the  Municipal  Court,  and,  therefore,  its  concluding  provision  that 
"  a  defendant  discharged  as  prescribed  in  this  section  shall  not  be 
arrested  upon  an  execution  issued  upon  the  judgment  in  the  action  " 
has  no  application  to  the  matter.     Rogoio  v.  Clark,  40  Misc.  Rep.  208. 

Fictitious  name;  when  the  judgment  is  fatally  defective  and  an  exe- 
cution issued  thereon  is  void. —  The  summons  in  an  action  brought  in 
the  Municipal  Court  of  the  city  of  New  York  was  entitled  as  follows: 


"Mary  Maekowitz, 

Plaintiff, 
against 

Etta  Lipsky  and  John  Goldberg, 
Defendant. 


Free  summons. 

First  names   being  fictitious,  un- 
known to  plaintiff." 


J 


The  certificate  of  service  recited  that  the  marshal  served  the  sum- 
mons "  on  John  Goldberg,  one  of  the  within-named  defendants  *  *  * 
and  that  I  know  the  person  to  be  one  of  the  defendants  therein  named." 

The  docket,  under  the  title  "  Markowitz  against  Lipsky  et  al.,"  re- 


§  271.  Execution.  107 

cited  that  the  plaintiff  appeared  in  person  and  that  the  complaint  was 
for  goods  sold  and  delivered;  that  the  defendant  appeared  in  person, 
and  that  judgment  was  rendered  for  $20.25  damages  and  $1  costs. 

The  record  did  not  show  for  or  against  whom  the  judgment  had  been 
rendered,  or  that  Goldberg  was  a  party  to  the  action  or  appeared 
therein.  An  execution  was  then  issued  directing  the  marshal  to  collect 
the  amount  due  out  of  "  the  separate  property  of  the  judgment  debtor, 
John  Goldberg,  first  name  fictitious,  real  name  unknown  to  plaintiff." 
This  execution  was  levied  upon  property  belonging  to  Nathan  M.  Gold- 
berg, who  was  one  of  the  persons  upon  whom  the  summons  in  the 
action  was  served,  and  who  appeared  in  answer  to  the  summons. 

In  an  action  brought  by  Nathan  M.  Goldberg  against  Markowitz  and 
the  marshal  who  levied  the  execution  to  recover  damages  for  the 
alleged  conversion  of  the  property  levied  upon,  it  was  held,  that  the 
record  of  the  judgment  was  fatally  defective,  and  that  the  execution 
issued  thereon  was  void  upon  its  face  and  constituted  no  protection  to 
the  marshal  or  to  any  one  acting  under  it;  that  the  docket  did  not 
show  upon  its  face  that  any  judgment  had  been  rendered  in  favor  of 
the  plaintiff  against  the  defendant;  that  as  Lipsky  was  the  only  de- 
fendant named  in  the  record,  there  was  no  presumption  that  the  pro- 
ceeding was  against  any  one  but  Lipsky.  Goldberg  v.  Markowitz,  94 
App.  Div.  237,  238. 

Motion  for  order  granting  leave  to  issue  execution  under  section  1391, 
Code  of  Civil  Procedure;  parties;  notice. —  The  application  should  be 
addressed  to  the  court  wherein  judgment  was  recovered.  The  person  or 
party  who  is  alleged  to  have  money  or  property  of  the  judgment  debtor 
must  be  made  a  party  to  the  motion  and  must  be  given  notice  thereof 
as  well  as  the  judgment  debtor.  King  v.  Irving,  103  App.  Div.  420-423; 
Bloane  v.  Tiffany,  103  App.  Div.  540. 

Policeman,  salary  of. —  An  execution  against  the  salary  of  a  police- 
man in  New  York  city  is  not  authorized  by  section  1391  of  the  Code 
of  Civil  Procedure.     Rosenstock  v.  City  of  New  York,  101  App.  Div.  9. 

Property  rights. —  The  Legislature  has  no  power  to  destroy  existing 
property  rights  by  legislation  in  favor  of  judgment  creditors.  Sloane 
V.  Tiffany,  103  App.  Div.  540;  King  V.  Irving,  103  App.  Div.  420. 

Public  servant. —  It  is  questionable  whether  the  salary  of  a  public 
servant  can  be  reached  under  Code  Civil  Procedure,  section  1391. 
Keelan  v.  Sullivan,  N.  Y.  Law  Journal,   July   19,    1905,  Bischoff,  J. 

Rent  due  is  not  "  necessaries  sold." —  The  statute  will  not  be  extended 
to  cases  not  clearly  within  the  plain  and  ordinary  meaning  of  its 
phraseology.  I  think  the  word  "  necessaries,"  as  intended  by  the  law- 
makers, refers  to  tangible  property,  that  is,  merchandise  or  goods  which 
are  "  necessaries  "  in  contradistinction  to  such  "  necessaries "  as  rent 
or  physician's  services.  If  the  Legislature  intended  to  include  all 
"  necessaries  "  why  did  it  add  the  word  "  sold  ?  "  If  it  was  designed 
to  reach  a  judgment  debtor's  wages  for  any  "  necessaries "  the   word 


108  Execution.  §§  272-276. 

"  sold "  would  be  useless  and  superfluous.  It  must  be  assumed  that 
the  Legislature  had  a  purpose  in  adding  the  word  "  sold,"  and  that  it 
intended  thereby  to  express  the  popular  understanding  of  the  phrase 
"  necessaries  sold,"  as  referring  to  merchandise  which  would  be  con- 
sidered "  necessaries  "  to  the  judgment  debtor  "  sold  "  to  him  in  contra- 
distinction from  necessaries  generally  speaking.  Justice  Greenbaum, 
Supreme  Court,  Special  Term,  Part  I,  in  Cochran  V.  Howes,  N.  Y.  Law 
Journal,  June  20,   1905. 

Trust  fund;  will. —  Section  1391  of  the  Code  of  Civil  Procedure,  as 
amended  by  chapter  461  of  the  Laws  of  1903,  permitting  an  execution 
upon  a  judgment  for  necessaries  to  be  issued,  and  requiring  the  pay- 
ment upon  the  judgment  of  10  per  cent,  of  the  income  of  the  trust  fund 
created  for  the  judgment  debtor,  is  not  retroactive  and,  consequently, 
does  not  apply  to  a  trust  created  for  the  benefit  of  a  judgment  debtor 
by  a  will  admitted  to  probate  in  1894.  The  trustee  is  a  necessary  party 
to  the  motion  for  the  execution.  King  V.  Irving,  103  App.  Div.  420; 
Sloane  v.  Tiffany,  103  App.  Div.  540. 

Said  section  of  the  Code  of  Civil  Procedure  would  be  unconstitutional 
if  intended  to  affect  rights  acquired  under  trusts  created  and  in  opera- 
tion before  the  passage  of  said  section.  Sloane  V.  Tiffany,  103  App. 
Div.  540. 

Time;  failure  to  issue  execution  in. —  Plaintiff  obtained  an  order  of 
arrest,  recovered  judgment,  but  failed  to  issue  execution  before  the 
expiration  of  twenty-four  hours  after  he  obtained  the  judgment;  held, 
that  defendant,  though  out  on  bail,  is  entitled  to  be  discharged  under 
section  68.  Held,  also,  that  such  discharge  does  not  defeat  plaintiff's 
right  to  the  subsequent  issue  of  a  body  execution  upon  the  judgment 
under  section  271.     Rogow  v.  Clark,  40  Misc.  Rep.  208. 

Notes   to  section  272,   "Arrest   (Execution)." 

Failure  to  issue  execution  in  time;  subsequent  issue.— Plaintiff  ob- 
tained an  order  of  arrest,  recovered  judgment,  but  failed  to  issue  exe- 
cution before  the  expiration  of  twenty-four  hours  after  he  obtained 
the  judgment,  held,  that  defendant,  although  out  on  bail,  is  entitled 
to  be  discharged  under  section  68.  Held,  also,  that  such  discharge  does 
not  defeat  plaintiff's  right  to  the  subsequent  issue  of  a  body  execution 
upon  the  judgment  under  section  271.  Rogow  v.  Clark,  40  Misc. 
Rep.  208. 

Notes    to    section   276,    "Marshal;    when   Liable    to  Execution; 

Creditor." 

Action  against  a  defendant  whose  name  is  fictitious;  when  the  judg- 
ment is  fatally  defective  and  an  execution  issued  thereon  is  void. — 


§  282. 


Execution. 


109 


The  summons  in  an  action  brought  in  the  Municipal  Court  of  the  city 
of  New  York  was  entitled  as  follows: 


"Mary  Mabkowitz, 

Plaintiff, 
against 

Etta  Lipsky  and  John  Goldberg, 
Defendant. 


Free  summons. 

First  names  being  fictitious,  un- 
known to  plaintiff." 


•  J 


The  certificate  of  service  recited  that  the  marshal  served  the  sum- 
mons "  on  John  Goldberg,  one  of  the  within-named  defendants,  *  *  * 
and  that  I  know  the  person  to  be  one  of  the  defendants  therein  named." 

The  docket,  under  the  title  "  Markowitz  against  Lipsky  et  al.,"  re- 
cited that  the  plaintiff  appeared  in  person,  and  that  the  complaint  was 
for  goods  sold  and  delivered;  that  the  defendant  appeared  in  person, 
and  that  judgment  was  rendered  for  $20.25  damages  and  $1  costs. 

The  record  did  not  show  for  or  against  whom  the  judgment  had 
been  rendered,  or  that  Goldberg  was  a  party  to  the  action  or  appeared 
therein.  An  execution  was  then  issued  directing  the  marshal  to  collect 
the  amount  due  out  of  "  the  separate  property  of  the  judgment  debtor, 
John  Goldberg,  first  name  fictitious,  real  name  unknown  to  plain- 
tiff ".  This  execution  was  levied  upon  property  belonging  to  Nathan 
M.  Goldberg,  who  was  one  of  the  persons  upon  whom  the  summons  in 
the  action  was  served,  and  who  appeared  in  answer  to  the  summons. 

In  an  action  brought  by  Nathan  M.  Goldberg  against  Markowitz  and 
the  marshal  who  levied  the  execution,  to  recover  damages  for  the  al- 
leged conversion  of  the  property  levied  upon,  it  was  held,  that  the 
record  of  the  judgment  was  fatally  defective,  and  that  the  execution 
issued  thereon  was  void  upon  its  face  and  constituted  no  protection 
to  the  marshal  or  to  any  one  acting  under  it; 

That  the  docket  did  not  show  upon  its  face  that  any  judgment  had 
been  rendered  in  favor  of  the  plaintiff  against  the  defendant.  That 
as  Lipsky  was  the  only  defendant  named  in  the  record,  there  was  no 
presumption  that  the  proceeding  was  against  any  one  but  Lipsky. 
Goldberg  v.  Markowitz,  94  App.  Div.  237,  238. 


§  282.  Duties  of  the  clerk. —  9.  To  keep  his  office  open  for 
the  transaction  of  business,  every  judicial  day,  from  nine 
o'clock  in  the  forenoon  to  four  o'clock  in  the  afternoon,  ex- 
cept that  during  the  months  of  July  and  August  of  each  year 
the  clerk's  office  may,  by  a  rule  established  by  the  board  of 
justices,  be  closed  at  two  o'clock  in  the  afternoon.      (As 


110  Clerks  and  Officers  §§  295,  29G. 

amended  by  Laws  1904,  chap.  682 ;  passed  May  9,  1904, 
adding  subd.  9  to  this  section.) 

Notes  to  section  295,  "Prosecution  of"  [Marshal's]  "Bond." 

Action  against  the  surety  upon  a  marshal's  bond;  a  judgment  against 
him  is  not  even  prima  facie  evidence  of  a  breach;  what  is  necessary 
proof  to  obtain  judgment  against  surety. —  In  an  action  against  the 
surety  upon  the  official  bond  of  a  marshal,  conditioned  that  he  shall 
well  and  faithfully  execute  the  duties  of  his  office  without  fraud,  de- 
ceit, or  oppression,  a  judgment  recovered  against  him  for  a  conversion 
or  unlawful  levy  is  not,  as  against  the  surety,  even  prima  facie  evidence 
of  the  facts  essential  to  a  recovery.  While  section  295  of  the  Municipal 
Court  Act  makes  it  a  condition  of  maintaining  such  an  action  against 
the  surety  that  a  judgment  shall  have  been  recovered  against  the 
marshal,  execution  issued  and  returned  wholly  or  partly  unsatisfied 
and  leave  given  to  prosecute  the  bond,  the  act  does  not  declare  that 
the  judgment  shall  be  evidence  against  the  surety  or  anything  more 
than  the  fact  that  the  judgment  has  been  obtained.  Loewer's  Gam- 
orinus  B.  Co.  v.  Lithauer,  43  Misc.  Rep.  683. 

Invalid  levy  on  goods  of  a  third  person;  bond  of  a  city  marshal  of 
Brooklyn;  its  validity. —  A  surety,  of  a  marshal  of  the  former  city  of 
Brooklyn,  which  has  become  bound  for  his  faithful  discharge  of  the 
duties  of  his  office  and  in  default  thereof  to  pay  all  damages  resulting 
from  such  default,  is  liable  to  a  person  where  the  marshal  attaches 
and  sells  that  person's  property  by  virtue  of  process  running  against 
another  person.  The  marshal  must  be  deemed  to  have  been  acting 
colore  officii.  The  validity  of  the  bond  is  not  impaired  by  the  facts 
that  it  was  given  before,  while  the  breach  thereunder  arose  after,  Janu- 
ary 1,  1898,  when  the  said  charter  took  effect.  Fohs  v.  Rain,  39  Misc. 
Rep.  316. 

Liability  for  wrongful  levy. — A  city  marshal  and  the  sureties  upon 
his  official  bond  "  for  the  faithful  discharge  of  his  duties "  are  liable 
in  damages  for  a  levy  upon  the  goods  of  one  person  under  an  execution 
or  other  process  against  the  goods  of  another.  Frankenstein  v.  Cum- 
misky,  46  Misc.  Rep.  485. 

Notes  to  section  296,  "  In  What  Court  Bond  May  be  Prosecuted." 

County  Court  of  Kings  county. —  The  bond  may  be  ordered  prose- 
cuted against  the  surety  and  the  marshal  continued  in  office  by  the 
charter  of  the  city  of  New  York,  in  the  Municipal  Court  of  said  city, 
borough  of  Brooklyn,  and  the  said  charter  (Laws  1897,  chap.  378, 
§  1428)  does  not  limit  prosecution  to  the  County  Court  of  Kings 
county.     Fohs  v.  Rain,  39  Misc.  Rep.  316. 


§§  306,  307.  Marshals.  Ill 

Jurisdiction  in  an  action  against  a  foreign  corporation,  having  an 
office  in  said  city,  as  surety  upon  a  city  marshal's  bond. —  The  jurisdic- 
tion of  the  Municipal  Court  of  the  city  of  New  York  to  render  judg- 
ment against  a  foreign  corporation,  having  an  office  in  said  city,  and 
being  surety  on  the  bond  of  a  city  marshal,  is  to  be  determined  by  the 
Municipal  Court  Act  (Laws  1902,  chap.  580,  §  1,  subds.  5  and  18), 
and  under  these  subdivisions,  when  read  together,  there  is  no  jurisdic- 
tion where  the  plaintiff  claims  more  than  $500.  Section  296  of  said 
act,  authorizing  a  justice  of  the  Supreme  Court  to  order  prosecution 
in  the  said  Municipal  Court  of  a  marshal's  bond  —  without  limitation 
as  to  its  amount  —  cannot  aid  the  plaintiff,  and  is  to  be  condemned 
as  an  attempt  to  give  such  a  justice  power  to  confer  upon  the  said 
Municipal  Court  jurisdiction  in  such  a  case  beyond  $500.  Frieland  v. 
Union  Surety  Co.,  43  Misc.  Rep.  38. 

§  306.  Removal  and  suspension  of  marshals. —  The  mayor 
may  remove  any  marshal,  after  giving  him  an  opportunity 
to  be  heard,  upon  charges  in  writing  preferred  against  such 
marshal,  and  filed  with  the  mayor,  and  may,  in  his  discre- 
tion, suspend  said  marshal  from  the  performance  of  his 
duties,  as  such,  pending  a  hearing  upon  the  charges.  Upon 
charges  being  preferred  against  a  marshal  by  a  justice  of  the 
municipal  court,  the  mayor  may  forthwith  cause  notice  of 
suspension  of  such  marshal  to  be  served  upon  him,  and  such 
marshal  shall  thereupon  remain  suspended  until  the  hear- 
ing and  determination  of  such  charges  by  the  mayor.  The 
mayor  may,  in  his  discretion,  delegate  to  the  secretary  to  the 
mayor  the  power  and  duty  of  hearing  the  evidence  to  be 
produced  upon  the  said  hearing  and  in  such  case  the  said 
secretary  to  the  mayor  shall  have  the  power  to  issue  sub- 
poenas, administer  oaths  and  take  such  evidence  and  shall 
submit  the  same  to  the  mayor  who  shall  thereupon  make  a 
determination  thereon,  which  determination  shall  have  the 
same  force  and  effect  as  if  the  said  evidence  had  been  taken 
before  the  mayor.  (As  amended  by  Laws  1904,  chap.  264; 
passed  April  8,  1904.) 

§  307.  Payment  of  money  received  by  marshals. —  When- 
ever any  marshal  shall  collect  or  receive  any  money  upon  any 
process  of  the  municipal  court  of  the  city  of  ]STew  York,  he 
shall  pay  the  same  over  to  the  clerk  of  the  court  of  the  dis- 


112  Appeals.  §  311. 

trict  from  which  such  process  was  issued,  less  his  lawful 
fees  and  disbursements  within  five  days  after  the  same  shall 
have  been  received  by  him.  Upon  his  failure  so  to  do  he 
may  be  proceeded  against  as  for  a  contempt.  The  clerk  of 
the  court  with  whom  such  money  is  deposited  shall  pay  the 
same  over  on  demand  to  the  person  entitled  thereto.  (This 
is  a  new  section  added  by  Laws  1905,  chap.  228;  became  a 
law  April  19,  1905.) 

§  311.  An  appeal  must  be  taken  within  twenty  days  after 
the  entry  of  the  judgment,  order  or  final  order  in  the  docket, 
except  that  where  a  defendant  appeals  from  a  judgment  ren- 
dered in  an  action  wherein  he  did  not  appear  and  the  sum- 
mons was  not  personally  served  upon  him,  the  appeal  may 
be  taken  within  twenty  days  after  personal  service  upon  him, 
on  the  part  of  the  plaintiff,  of  written  notice  of  the  entry  of 
the  judgment.  An  appeal  is  taken  by  serving  upon  the  clerk 
of  the  court  or  his  successor  in  office  in  the  district  in  which 
the  judgment,  order  or  final  order  was  rendered,  and  upon 
the  respondent,  a  written  notice  of  appeal,  subscribed  either 
by  the  appellant  or  by  his  attorney  in  the  appellate  court, 
and  paying  at  the  same  time  the  costs  and  disbursements  of 
the  action  to  such  clerk  who  shall  hold  the  same  to  abide  the 
event  of  such  appeal  and  the  further  order  of  the  court  in 
the  district  from  which  the  appeal  was  taken.  (As  amended 
by  Laius  1904,  chap.  598  ;  passed  May  4,  1904.) 

Notes  to  section  310,  "When  Appeal  May  be  Taken,"  and  sec= 
tion  311,  "When  and  how  Taken." 

RULES  FOR  THE  HEARING  OF  APPEALS  FROM  THE  CITY  COURT 
OF  THE  CITY  OF  NEW  YORK  AND  FROM  THE  MUNICIPAL 
COURT  IN  THE  BOROUGHS  OF  MANHATTAN  AND  THE 
BRONX. 

Rule  I. 

There  shall  be  a  term  of  the  Supreme  Court  for  the  hearing  of  ap- 
peals from  the  City  Court  and  the  Municipal  Court  of  the  city  of 
New  York  in  the  boroughs  of  Manhattan  and  the  Bronx,  which  shall 
commence  on  the  first  Monday  of  October,  November,  December,  Jan- 
uary, February,  March,  April,  May,  and  June  in  each  year,  at  10:30 
A.  M.,  and  shall  continue  from  day  to  day  during  each  of  said  months 


§  311.  Appeals.  113 

until  all  appeals  ready  for  hearing  are  heard  and  disposed  of.  The 
court  shall  hold  its  sessions  in  the  court-house  in  the  county  of  New 
York,  and  it  shall  be  held  by  three  justices  of  the  Supreme  Court  duly 
designated  to  hold  such  term,  and  shall  be  known  as  the  Appellate  Term. 

Rule  II. 

The  clerk  of  such  term  of  the  Supreme  Court  shall  make  up  a  calen- 
dar of  all  appeals  to  be  heard  at  each  term,  and  publish  the  same 
in  "  The  Law  Journal "  at  least  five  days  before  the  commencement 
of  the  term.  No  appeal  shall  be  placed  on  such  calendar  unless  the 
return  from  the  court  below  is  duly  filed  with  the  clerk  of  such  term 
at  least  eight  days  before  the  commencement  of  the  term;  nor,  in  the 
case  of  appeals  from  the  City  Court,  unless  an  affidavit  is  filed  with 
such  clerk  at  least  eight  days  before  the  commencement  of  the  term, 
by  which  it  appears  that  three  copies  of  such  return,  duly  printed  as 
required  by  the  General  Rules  of  Practice,  have  been  served  upon  the 
attorney  for  the  respondent.  Upon  such  return  being  filed  as  afore- 
said, and,  in  the  case  of  appeals  from  the  City  Court,  upon  an  affidavit 
as  aforesaid  being  also  filed,  the  clerk  shall  place  the  appeal  upon 
the  calendar  in  the  order  in  which  the  return  was  filed.  Upon  an 
appeal  from  the  City  Court  the  judgment  or  order  of  the  court  shall 
be  entered  in  the  office  of  the  clerk  of  the  Supreme  Court;  a  certified 
copy  of  such  judgment  or  order  shall  be  annexed  to  the  return  from 
the  City  Court,  which  certified  copy  and  return  shall  be  transmitted 
to  the  City  Court  as  required  by  section  1345  of  the  Code  of  Civil 
Procedure.  Upon  an  appeal  from  the  Municipal  Court  the  judgment 
or  order  of  the  Appellate  Term  shall  be  entered  in  the  office  of  the 
clerk  of  the  Supreme  Court,  and  a  certified  copy  thereof  annexed  to 
the  return  received  from  the  Municipal  Court,  which  return  and 
certified  copy  of  the  judgment  or  order  shall  be  returned  to  the  district 
of  the  Municipal  Court  from  which  the  appeal  was  taken,  as  provided 
by  section  317  of  chapter  580  of  the  Laws  of  1902,  which  shall  remain 
on  file  in  the  said  Municipal  Court. 

Rule  III. 

In  appeals  from  the  City  Court,  in  case  the  appellant  does  not  cause 
the  return  to  be  filed  with  the  clerk  of  the  said  Appellate  Term,  and 
print  and  serve  three  copies  thereof  upon  the  attorney  for  the  re- 
spondent, as  required  by  the  General  Rules  of  Practice,  within  ten 
days  after  the  settlement  of  the  case  on  appeal,  the  respondent  may 
move,  upon  five  days'  notice,  on  the  first  day  of  the  term  of  such 
court  to  dismiss  the  appeal,  and  the  appeal  shall  be  dismissed,  unless 
the  time  of  the  appellant  to  cause  such  return  to  be  filed  and  copies 
thereof  to  be  printed  and  served  be  extended  by  the  justices  assigned 
to   hear   such   appeals,   or   one   of   them,    for   good   cause   shown.     In 


114  Appeals.  §  311. 

appeals  from  the  Municipal  Court  of  the  city  of  New  York,  if  the  ap- 
pellant does  not  procure  the  return  to  be  made  to  the  court  within 
the  time  prescribed  by  section  317  of  chapter  580  of  the  Laws  of  1902, 
the  respondent  may  move,  on  five  days'  notice,  to  dismiss  the  appeal, 
and  such  appeal  shall  be  dismissed,  unless  the  justices  assigned  to  hear 
such  appeal,  or  one  of  them,  for  good  cause  shown,  shall  extend  the 
time.  If  the  court,  below  shall  not  make  the  return  as  prescribed 
by  section  317  of  chapter  580  of  the  Laws  of  1902,  either  party  may 
move  at  the  Appellate  Term,  upon  five  days'  notice  to  the  attorney 
for  the  adverse  party  and  to  the  trial  justice  to  compel  such  return 
by  attachment. 

Rule  IV. 

Motions  for  reargument  will  only  be  heard  on  notice  to  the  adverse 
party  at  the  next  succeeding  term  after  the  decision;  such  notice  must 
state  briefly  the  ground  upon  which  the  reargument  is  asked,  and  such 
motions  must  be  submitted  on  printed  briefs  stating  concisely  the 
points  supposed  to  have  been  overlooked  or  misapprehended  by  the 
court  with  proper  reference  to  the  particular  portion  of  the  case  and 
the  authorities  relied  upon,  together  with  copies  of  the  opinions,  if 
any,  and  counsel  will  not  be  heard  orally. 

Rule  V. 

In  the  argument  of  the  appeal  from  an  order  or  from  a  Municipal 
Court  judgment,  not  more  than  fifteen  minutes  shall  be  occupied  by 
counsel  on  either  side,  and  in  the  argument  of  an  appeal  from  a  judg- 
ment of  the  City  Court  not  more  than  thirty  minutes  shall  be  occupied 
by  counsel  on  either  side,  except  by  express  permission  of  the  court. 

Rule  VI. 

If  the  appellant  does  not  appear  upon  the  call  of  the  calendar,  the 
judgment  or  order  appealed  from  shall  be  affirmed.  If  the  appellant 
appears  and  the  respondent  fails  to  appear,  the  appellant  may  either 
argue  or  submit  his  case,  but  judgment  of  reversal  by  default  will  not 
be  allowed. 

Rule  VII. 
An  application  to  appeal  to  the  Appellate  Division  of  the  Supreme 
Court  from  a  determination  of  the  Appellate  Term,  under  section  1344 
of  the  Code  of  Civil  Procedure,  must  be  made  in  writing  on  notice  to 
the  adverse  party  upon  the  first  day  of  the  term  following  the  term 
in  which  the  case  was  decided;  and  such  application  must  set  forth  in 
full  the  special  reasons  why  such  an  appeal  should  be  allowed,  and 
must  be  submitted  without  oral  argument. 


§  311.  Appeals.  115 

Rule  VIII. 

All  motions  which  may  be  made  under  Rule  III  upon  a  notice  of 
five  days. —  Proof  of  service  of  such  notice  must  be  filed  with  the  clerk, 
together  Avith  a  note  of  issue,  on  the  Friday  preceding  the  commence- 
ment of  the  term.  In  all  other  cases,  whether  the  motion  be  founded 
upon  regular  notice  or  an  order  to  show  cause,  proof  of  service  of  the 
notice  or  order,  together  with  a  note  of  issue,  must  be  filed  with  the 
clerk  on  the  same  day. 

The  Motion  Calendar  will  be  published  on  the  Saturday  preceding 
the  commencement  of  the  term,  but  no  motion  will  be  placed  thereon 
except  upon  compliance  with  this  rule. 

Appeals  from  the  Municipal  Court  will  be  disposed  of  in  their  order 
upon  the  calendar.  If  either  party  be  not  ready  to  argue  the  ease 
orally  when  called  for  argument,  he  must  submit,  or  the  case  for  cause 
shown  be  ordered  to  stand  over  until  the  next  term. 

Proposed  orders  must  be  presented  for  settlement  on  a  notice  of  two 
days. 

Every  order  containing  a  provision  for  a  new  trial  in  the  Municipal 
Court  must  specify  the  time  and  place  of  the  new  trial  ordered  in 
accordance  with  the  provisions  of  section  3065  of  the  Code  of  Civil 
Procedure. 

Supreme  Court  —  Appellate  Term. 

In  all  motions  which  are  required  to  be  placed  upon  the  Motion  Cal- 
endar under  Rule  VIII  of  the  rules  for  the  hearing  of  appeals  from  the 
City  Court  and  from  the  Municipal  Court,  and  in  motions  for  restitu- 
tion, no  oral  argument  will  be  heard  and  the  Motion  Calendar  will  not 
be  called. 

The  papers  upon  which  a  motion  is  made  and  the  answering  affidavits 
must  be  filed  with  the  clerk  of  the  Appellate  Term  at  or  before  12 
o'clock  noon  of  the  day  for  which  the  motion  is  noticed. 

If  a  motion  affects  any  appeal  on  the  calendar,  counsel  are  requested 
to  call  the  attention  of  the  clerk  to  the  fact. 

Appeals  from  orders  and  judgments  of  the  City  Court  will  be  heard 
in  the  forenoon  of  the  first  day  of  the  term. 

Appeals  from  the  Municipal  Court  will  be  heard  in  the  afternoon  of 
the  same  day,  after  the  Calendar  of  City  Court  Appeals  shall  have 
been  disposed  of. 

On  appeals  from  the  City  Court  no  typewritten  copies  of  the  points 
will  be  received  and  the  body  of  each  point  in  the  printed  copies  must 
be  in  uniform  type,  as  prescribed  by  Rule  43  of  the  General  Rules  of 
Practice. 

No  appeal  from  a  judgment  or  order  of  the  Municipal  Court  will  be 
heard  or  received  on  submission  unless  proof  of  service  of  a  notice  of 
argument  shall  have  been  filed  with  the  clerk  of  the  Appellate  Term 
not  less  than  six  days  before  the  first  day  of  the  term. 


116  Appeals.  §  311. 

Amended  Rules  Appellate  Division,  Second  Department,  Regulating 
Appeals  from  the  Municipal  Court. 

All  appeals  from  judgments  rendered  in  the  Municipal  Court  of  the 
city  of  New  York,  in  districts  embraced  within  the  Second  Judicial 
Department,  will  be  heard  by  the  Appellate  Division  of  the  Supreme 
Court  for  said  depai  tment.  No  special  calendar  of  such  appeals  will 
hereafter  be  made  up,  but  they  will  be  placed  upon  the  general  calen- 
dar of  enumerated  cases,  according  to  the  date  of  the  appeal,  and  will 
be  treated  in  all  respects,  not  herein  specially  provided  for,  like  other 
appeals  to  the  Appellate  Division  from  courts  other  than  the  Supreme 
Court.  Either  party  may  bring  such  an  appeal  on  for  hearing  by  a 
notice  of  argument  served  at  least  eight  days  prior  to  the  beginning 
of  the  term.  Upon  the  return  day  of  said  notice  the  respondent  may, 
upon  the  default  of  his  adversary,  take  a  judgment  of  affirmance  or  an 
order  dismissing  the  appeal,  as  the  justice  of  the  case  may  require; 
and  it  shall  not  be  necessary  to  make  a  special  motion  for  the  dismissal 
of  an  appeal,  except  for  failure  to  file  the  return.  In  case  of  a  failure 
of  any  justice  of  the  Municipal  Court  to  make  return  to  this  court,  as 
required  by  section  317  of  chapter  580,  Laws  of  1902,  it  shall  be  the 
duty  of  the  appellant  forthwith  to  apply  to  this  court,  under  the  pro- 
visions of  sections  3055  and  3056  to  compel  such  return. 

The  appeal  shall  be  heard  upon  the  original  return  or  a  certified 
copy  thereof,  and  each  party  shall  file  five  copies  of  any  brief  or  points 
which  he  may  desire  to  submit,  at  least  one  day  before  the  argument. 

These  amended  rules  will  take  effect  beginning  with  the  February 
term,  1905. 

Affidavits  attached  to  the  appellant's  brief  not  considered. —  On  an 
appeal  from  an  order  of  this  court  the  Appellate  Division  will  not 
consider  affidavits  attached  to  the  appellant's  brief.  Guase  v.  Sterling 
Piano  Co.,  95  App.  Div.  115. 

Corrected  judgment. —  Where  a  judgment  for  defendant  is,  on  plain- 
tiff's motion,  corrected  to  read  "  complaint  dismissed  for  failure  of 
proof,"  the  plaintiff  cannot  subsequently  appeal  from  such  corrected 
judgment  as  it  was  made  on  her  own  motion  and  enables  her  to  begin 
another  action  for  the  same  cause.  Reichenberg  v.  Interurban  St.  R.  R. 
Co.,  45  Misc.  Rep.  387. 

Delay  in  deciding,  in  the  second  department,  appeals  from  the  New 
York  Municipal  Court,  explained. —  The  delay  of  the  Appellate  Division 
in  the  second  department,  in  disposing  of  appeals,  involving  questions 
of  fact,  from  judgments  of  the  Municipal  Court  of  the  city  of  New 
York,  declared  to  be  due  to  the  fact  that  the  appellate  court  is  provided 
with  but  a  single  copy  of  the  appeal  papers,  thus  preventing  all  the 
members  of  the  court  from  working  upon  the  case  at  the  same  time. 
Schmand  v.  Langdon,  89  App.  Div.  191. 


§  311.  Appeals.  117 

Exceptions  to  be  heard  in  the  first  instance;  power  of  Appellate 
Term  and  Appellate  Division;  history. —  The  Appellate  Term  of  the 
City  and  District  Courts  of  the  city  of  New  York,  as  constituted  under 
the  rules  of  the  Appellate  Division,  has  no  power  to  pass  upon  excep- 
tions ordered  to  be  heard  in  the  first  instance,  during  the  suspension 
of  entry  of  judgment  dismissing  a  complaint.  The  power  of  said  Appel- 
late Term  relates  exclusively  to  appeals,  and  a  motion  for  a  new  trial, 
ordered  to  be  heard  in  the  first  instance,  is  not  an  appeal. 

The  power  of  the  Appellate  Division  to  pass  upon  such  exceptions 
in  the  first  instance  is  exclusive.  History  of  Appellate  Term  and  its 
jurisdiction  stated.  Dickson  v.  Manhattan  R.  Co.,  45  Misc.  Rep.  572. 
Decided  December  Term,  1904. 

Judgment  by  default  is  appealable. —  In  an  action  begun  in  this  court 
after  September  1,  1902,  when  the  Municipal  Court  Act  (Laws  1902, 
chap.  580)  went  into  effect,  the  defendant  may  appeal  from  a  judgment 
taken  against  her  upon  her  default,  but  it  is  prohibited  by  section  257 
of  said  statute  from  an  appeal  from  an  order  opening  her  default. 
Long  Branch  Pier  Co.  v.  Crossley,  40  Misc.  Rep.  249.  See  also  Beebe 
v.  Nassau  Show-Case  Co.,  41  App.  Div.  456. 

Judgment  by  default  not  appealable. —  The  Municipal  Court  Act  (Laws 
1902,  chap.  5S0)  contains  no  provision  permitting  an  appeal  from  a 
judgment  taken  by  default  in  that  court,  and  such  an  appeal  is  no 
longer  permissible.  A  defendant  who  has  appeared  in  the  action,  but 
who  has  defaulted  in  answering,  who  desires  a  review  of  an  order 
denying  vacation  of  an  attachment  issued  in  the  action  against  his 
property  must  first  have  his  default  opened.  Brown  v.  Bouse,  43  Misc. 
Rep.  72. 

Jurisdiction;  counterclaim  $500. —  Quare,  whether  the  objection  that 
this  court  did  not  have  jurisdiction  of  a  counterclaim  for  an  amount 
in  excess  of  $500  can  be  successfully  urged  for  the  first  time  upon  an 
appeal  from  a  judgment  sustaining  the  counterclaim.  Lifshitz  v.  Mc- 
Connell,  80  App.  Div.  289. 

Orders. —  Only  such  orders  are  appealable  as  are  enumerated  in  sec- 
tions 253,  254,  255,  and  257  of  this  act.  Smith  v.  Ely,  46  App.  Div. 
458,  citing  Leavitt  v.  Katzoff,  43  Misc.  Rep.  26. 

Orders  appealable;  levy  on  execution,  how  discharged  pending  defend- 
ant's appeal. —  An  order  of  a  justice  of  this  court  denying  a  motion  to 
vacate  an  order  of  arrest  is  not  appealable.  Semble,  that  where  a 
defendant  against  whom  a  judgment  has  been  recovered  in  this  court 
upon  which  execution  has  been  issued  and  levy  made  thereunder  on 
his  personalty  files  a  notice  of  appeal  and  serves  upon  the  plaintiff 
an  undertaking  in  the  form  required  by  the  Municipal  Court  Act  (Laws 
1902,  chap.  580,  §  314)  for  more  than  $100  and  for  twice  the  amount 
of  the  judgment  but  in  an  amount  less  than  $500,  the  effect  of  the 
service  is  merely  to  stay  further  proceedings  under  the  execution,  and 
if  the   defendant  desires  to  discharge  the  levy  he   should  file  a  new 


118  Appeals.  §  311. 

undertaking  of  similar  conditions  in  $500,  in  which  event  this  court 
would  under  Code  Civil  Procedure,  section  1311,  taken  in  connection 
with  section  20  of  the  Municipal  Court  Act,  have  jurisdiction  to  make 
an  order  discharging  the  levy.     Hyman  v.  Segal,  44  Misc.  Rep.  226. 

Order  opening  a  default  not  appealable. —  The  right  of  a  person  who, 
prior  to  the  time  when  the  New  York  Municipal  Court  Act  (Laws 
1902,  chap.  580,  §  257)  took  effect,  had  recovered  a  judgment  in  that 
court  by  default  to  appeal  from  an  order  opening  the  default  and  setting 
aside  the  judgment,  was  preserved  by  section  301  of  the  Municipal  Court 
Act.  Such  an  appeal  no  longer  lies.  The  failure  of  the  order  opening 
the  default  and  setting  aside  the  judgment  to  recite  the  grounds  upon 
which  it  was  granted,  as  required  by  section  1367  of  the  Consolidation 
Act,  constitutes  a  fatal  defect.     Johnson  v.  Manning,  80  App.  Div.  368. 

Order  sustaining  a  demurrer. —  No  appeal  lies  to  this  court  from  an 
order  sustaining  or  overruling  a  demurrer  to  a  complaint.  But  where, 
though  the  notice  of  appeal  recites  the  entry  of  a  judgment,  the  record 
does  not  contain  a  judgment  entered  upon  such  an  order,  an  appeal 
therefrom  will  be  dismissed.     Smith  v.  Ely,  46  Misc.  Rep.  458. 

Pleading  minutes  of  trial. —  As  a  general  rule  the  scope  of  an  adjudi- 
cation in  this  court  may,  in  view  of  the  informality  of  the  pleadings 
and  proceedings  in  that  court,  be  determined  by  a  resort  to  the  minutes 
of  the  trial.  Section  1209  of  the  Code  of  Civil  Procedure  does  not 
apply  to  this  court  and  the  question  whether  a  judgment  rendered  by 
it  dismissing  the  complaint  was  or  was  not  rendered  upon  the  merits 
need  not  therefore  be  determined  on  the  judgment-roll  alone,  but  resort 
may  be  had  to  the  minutes  of  the  trial.  Stecher  v.  Independent  Order, 
45  Misc.  Rep.  340. 

Retaxation  of  costs;  the  remedy  is  by  an  appeal  from  the  judgment  in 
which  such  costs  are  included;  second  department. —  The  jurisdiction  of 
the  Appellate  Division  in  the  second  department  to  review  orders  of  the 
Municipal  Court  of  the  city  of  New  York  is  statutory  only. 

The  Municipal  Court  Act  (Laws  1902,  chap.  580,  §§  253-257)  does 
not  permit  an  appeal  to  the  Appellate  Division  in  the  second  depart- 
ment from  an  order  of  the  Municipal  Court  of  the  city  of  New  York 
denying  a  motion  to  review  a  taxation  of  costs  under  an  order  made 
by  such  Appellate  Division  affirming  a  judgment  of  the  Municipal  Court. 

The  appeal  contemplated  in  section  342  of  the  Municipal  Court  Act 
relating  to  the  review  of  a  taxation  of  costs  is  an  appeal  from  the 
judgment  and  not  an  appeal  from  the  separate  order  reviewing  the 
taxation.  Semble,  that  as  it  is  the  practice  in  the  Municipal  Court, 
after  the  affirmance  of  a  judgment  by  the  Appellate  Division,  to  enter 
a  new  judgment  containing  the  cost3  upon  appeal,  the  remedy  of  the 
party  claiming  that  an  excessive  amount  of  costs  was  allowed  is  to 
appeal  to  the  Appellate  Division  from  so  much  of  the  judgment  as 
awards  the  item  which  he  deems  to  be  excessive.  Spiegelman  v.  Union 
Railway  Co.,  95  App.  Div.  92. 


§§  317-326.  Appeals.  119 

Vacating  its  own  void  judgment;  the  order  is  appealable;  the  appel- 
late court  is  concluded  ty  the  return;  it  cannot  consider  statements  in 
contravention  thereof  in  the  brief  of  counsel. —  Where  a  justice  of  this 
court  renders  judgment  in  a  case  tried  before  him,  which  judgment  is 
void  because  it  was  not  rendered  within  the  fourteen  days  prescribed  by 
sectioyi  230  of  the  Municipal  Court  Act  (Laics  1902,  chap.  580),  the 
justice  has  power  under  section  254  of  that  act  to  make  an  order 
vacating  such  judgment.  Such  order  is  appealable  to  the  Appellate 
Division,  second  department,  under  section  257  of  the  Municipal  Court 
Act.    Stern  v.  Fleck,  102  App.  Div.  272. 

Return  and  statements  of  brief. —  Upon  an  appeal  the  court  is  bound 
by  the  contents  of  the  return  made  by  the  justice,  and  cannot  consider 
statements  in  the  appellant's  brief,  not  supported  by  the  return,  tend- 
ing to  show  that  the  judgment  was  rendered  within  the  statutory  time. 
Stem  v.  Fleck,  102  App.  Div.  272. 

Statutory. —  The  power  of  the  Supreme  Court  to  entertain  appeals 
from  this  court  is  purely  statutory.  Smith  v.  Ely,  46  Misc.  Rep.  458, 
citing  Leavitt  v.  Katzoff,  43  Misc.  Rep.  26. 

Notes  to  section  317,  "Return." 

A  marshal's  return  showing  personal  service  of  the  summons  and 
verified  complaint  upon  the  defendant  cannot  be  controverted  by  affi- 
davit that  she  was  not  served  and  her  affidavit  forms  no  part  of  the 
record.     Long  Branch  Pier  Co.  v.  Crossley,  40  Misc.  Rep.  249. 

Notes  to  section  318,  "Settlement  of  Case  on  Appeal." 

Waiver. —  Service  by  the  respondent  of  amendments  to  the  case  on 
appeal  is  a  waiver  of  any  defects  in  the  appellant's  procedure.  Cooley 
v.  Penn.  R.  R.  Co.,  40  Misc.  Rep.  238. 

Notes  to  section  326,  "  Judgment." 

Erroneous  transfer  of  action;  appeal  from  order. —  Where  it  appears 
that  an  action,  transferred  to  a  district  not  adjoining,  because  of  the 
disqualification  of  the  justice,  was  brought  in  the  proper  district  and 
no  appeal  is  taken  from  an  order  denying  defendant's  motion  to  fur- 
ther transfer  the  cause,  not  to  the  district  adjoining  the  one  in  which 
the  action  had  been  brought,  but  to  the  district  in  which  defendant 
resided,  the  objection  that  the  district  to  which  the  transfer  was  made 
did  not  adjoin  the  district  in  which  the  action  was  brought  was  waived 
and  could  not  be  raised  for  the  first  time  on  appeal  from  a  judgment 
in  favor  of  plaintiff.    Lesser  v.  Adolph,  46  Misc.  Rep.  265. 

Proof  of  damages  for  personal  injuries;  judgment  not  reversed  if  the 
damages  are  warranted  by  undisputed  testimony;  effect  of  failure  to 
make  timely  objection. —  In  an  action  for  damages  for  personal  injuries, 
where  the  damages  recovered  were  $200  and  the  injuries  sustained  by 


120  Costs  and  Fees.  §§  330-332. 

the  plaintiff  were  severe  and  required  the  services  of  a  physician  for 
several  days,  for  which  services  the  bill  was  $40,  such  damage  may 
have  been  based  wholly  on  the  testimony  as  to  plaintiff's  injuries 
and  the  consequent  pain  and  suffering  and  the  value  of  medical  services. 
Hence,  although  in  plaintiff's  testimony  as  to  his  weekly  earnings  he 
included  the  profits  of  three  men  employed  by  him  as  painters,  the 
judgment  should  not  be  reversed  for  the  sole  reason  that  there  is  a 
possibility  that  the  judgment  comprehended  a  minute  portion  of  said 
profits.  To  do  so  would  be  to  thwart  justice  and  offer  a  premium  on 
appeals.  An  objection  to  plaintiff's  testimony  that  his  average  earn- 
ings were  $21  a  week  on  the  ground  that  such  answer  is  "  speculative 
and  remote  "  is  not  well  taken,  nor  is  it  made  in  time  when  taken 
after  the  testimony  is  in.  Tanzer  v.  New  York  City  Ry.  Co.,  46  Misc. 
Rep.  86. 

Sufficiency  of  testimony;  erroneous  rulings. —  Where  in  an  action  to 
recover  the  amount  deposited  upon  the  making  of  an  oral  contract  for 
the  sale  of  certain  real  estate,  the  evidence,  though  conflicting,  is 
sufficient  to  establish  the  falsity  of  defendant's  statement  in  relation 
to  the  dimensions  of  the  property,  this  court  under  this  section  will 
not  disturb  a  judgment  for  plaintiff  because  of  erroneous  rulings  in 
the  admission  or  exclusion  of  testimony,  particularly  in  relation  to 
the  ownership  of  the  property.    Lesser  v.  Adolph,  46  Misc.  Rep.  265. 

Notes  to  section  330,  "  When  Prevailing  Party  Entitled  to  Recover 

Costs." 

See  notes  to  section  332,  "  Costs,  sums  allowed."  Notes  to  section 
26,  "Action,  how  commenced."  Notes  to  section  248,  "  Nonsuit,  when 
authorized." 

Notes  to  section  332,  "Costs;  Sums  Allowed." 

Costs  to  defendant  upon  voluntary  discontinuance  by  plaintiff;  inter- 
pretation of  sections  248  and  332,  Municipal  Court  Act. —  Blum  v. 
O'Connor,  N.  Y.  Law  Journal,  July  1,  1903,  Supreme  Court,  Appellate 
Term,  June,  1903,  opinion  by  Freedman,  P.  J.  This  case  is  not  reported 
elsewhere.  See  also  Barry  v.  Winkle,  36  Misc.  Rep.  171;  Levine  v. 
Haliner,  62  App.  Div.  195;  McCuskie  v.  Eendrickson,  125  N.  Y.  555. 

Judgment  when  it  is  on  the  merits;  motion  to  amend  it;  when  a  de- 
fendant is  entitled  to  costs. —  Where  the  defendant  in  an  action  to 
recover  the  contract  price  of  certain  work  which,  by  the  terms  of  the 
contract,  was  to  be  completed  on  or  before  August  19,  1903,  denies  that 
the  work  has  ever  been  completed  according  to  the  contract,  and  inter- 
poses a  counterclaim  for  damages  incident  to  the  work,  and  the  justice 
before  whom  the  case  was  tried  without  a  jury  renders  a  decision 
"  dismissing  the  complaint  on  the  ground  this  action  is  prematurely 
brought,  the  work  not  being  completed  according  to  the  contract,  and 


§  341.  Costs  and  Fees.  121 

judgment  for  the  defendant  on  the  counterclaim  for  the  sum  of  $25.00 
without  costs,"  such  judgment  operates  as  a  dismissal  of  the  complaint 
upon  the  merits.  In  such  a  case  the  defendant  is  entitled,  under  sub- 
divisions 2  and  5  of  section  332  of  chapter  580  of  the  Laws  of  1902 
(The  Municipal  Court  Act),  to  $15  costs.  Reugamer  v.  Cieslinskie, 
104  App.  Div.  135. 

What  necessary  to  recover  costs. —  The  only  appearance  of  defendant 
being  by  an  indorsement  on  the  summons  he  is  not  entitled  to  costs 
under  this  section.  A  verified  pleading  or  a  written  notice  of  appearance 
by  an  attorney-at-law  is  absolutely  necessary  to  such  costs.  Rice  v. 
Hogan,  45  Misc.  Rep.  400. 

§  341.  Taxation  of  costs. —  Where  judgment  has  been  ren- 
dered by  the  justice,  costs  must  be  taxed  by  the  clerk  and  in- 
serted in  the  judgment.  Before  any  item  of  costs  other  than 
the  costs  fixed  by  the  express  provision  of  law  or  granted  by 
the  justice  or  fees  paid  to  the  clerk  in  the  action  are  allowed, 
the  party  must  show  by  his  affidavit,  or  that  of  his  attorney, 
that  the  item  was  actually  and  legally  paid  and  incurred. 
All  items  of  cost  must  be  entered  by  the  clerk  in  the  docket 
book  kept  by  him.  The  clerk  shall  likewise  tax  costs  allowed 
by  the  appellate  court,  and  the  prospective  fees  of  the  county 
clerk  and  sheriff,  namely  a  charge  for  docketing  judgment 
and  issuing  an  execution,  and  for  receiving  and  returning 
one  execution  thereof.  (As  amended  by  Laws  1903',  chap. 
144.) 

Notes  to  section  341. 

Costs  of  appeal  to  be  taxed  by  clerk  of  this  court;  no  time  limit; 
judgment  for  same;  mandamus. —  This  is  a  motion  for  a  writ  of 
peremptory  mandamus  to  direct  a  clerk  of  the  Municipal  Court  of  the 
city  of  New  York  to  tax  a  bill  of  costs.  The  clerk  has  refused  to  do 
so,  in  the  face  of  the  objection  of  opposing  counsel  that  the  taxation 
of  the  bill  was  noticed  more  than  twenty  days  after  the  docketing  of 
the  judgment  of  the  Municipal  Court  and  after  the  defendant  had 
appealed  from  that  judgment.  It  appears  that  a  judgment  was  entered 
in  the  Municipal  Court,  from  which  plaintiff  appealed  to  the  Appellate 
Term.  The  Appellate  Term  reversed  the  judgment,  with  costs  to  the 
appellant  to  abide  the  event.  The  second  trial  was  had  and  judgment 
awarded  the  plaintiff,  with  costs.  The  bill  of  costs  sought  to  be  taxed 
represents  the  costs  resulting  from  the  reversal  of  the  first  judgment 
by  the  Appellate  Term  and  accruing  to  the  plaintiff  by  reason  of  his 
success  upon  the  second  trial.     I  see  no  occasion  for  their  insertion  in 


122  Costs  and  Fees.  §§  342-346. 

the  judgment  docketed  in  the  Municipal  Court  as  a  result  of  the  second 
trial  nor  any  necessity  for  their  taxation  within  twenty  days  after 
the  rendition  of  the  judgment  of  the  trial  justice.  Section  341  of  the 
Municipal  Court  Act  (chap.  580,  Laws  of  1902)  provides  that  "the 
clerk  shall  likewise  tax  costs  of  the  appellate  court."  The  costs  here 
sought  to  be  taxed  are  such  costs.  No  time  limit  is  fixed,  nor  is  there 
any  provision  in  tie  statute  that  the  same  shall  be  inserted  in  the 
judgment  resulting  from  the  second  trial.  The  clerk  should  have 
taxed  the  costs  and  entered  judgment  for  the  amount  thereof.  The 
motion  is  granted,  with  $10  costs.  Kroder  v.  Mangin,  N.  Y.  Law  Jour- 
nal, June  4,  1903,  Supreme  Court,  Special  Term,  Blanchard,  J. 

Notes  to  section  342,  "  Review  of  Taxation." 

Appeal  must  be  from  judgment. —  The  appeal  contemplated  in  section 
342  of  the  Municipal  Court  Act  relating  to  the  review  of  a  taxation 
of  costs  is  an  appeal  from  the  judgment  and  not  an  appeal  from  the 
separate  order  reviewing  the  taxation.  Semble,  that  as  it  is  the  prac- 
tice in  the  Municipal  Court,  after  the  affirmance  of  a  judgment  by  the 
Appelate  Division,  to  enter  a  new  judgment  containing  the  costs  upon 
appeal,  the  remedy  of  the  party  claiming  that  an  excessive  amount  of 
costs  was  allowed  is  to  appeal  to  the  Appellate  Division  from  so  much 
of  the  judgment  as  awards  the  item  which  he  deems  to  be  excessive. 
Spiegelman  v.  Union  Ry.  Co.,  95  App.  Div.  92. 

Notes    to    section    344,    "  Costs;    Affidavit    Respecting   Disburse- 

ments." 

Affidavit;  witnesses. —  Section  344  of  the  Municipal  Court  Act  for- 
bids allowance  of  a  charge  for  attendance  of  witnesses  without  an 
affidavit  stating  the  number  of  days  of  actual  attendance.  Topken  v. 
Cunard  Steamship  Co.,  43  Misc.  Rep.  675. 

Costs  of  appeal  to  Appellate  Term  not  taxable  when  cause  not  brought 
to  hearing. —  Costs  of  an  appeal  to  the  Appellate  Term  cannot  be  taxed 
on  an  appeal  from  the  Municipal  Court  of  New  York  for  failure  to 
cause  the  return  to  be  filed.  Section  345  of  the  Municipal  Court  Act 
forbids  costs  to  either  party  if  the  appeal  be  dismissed  because  neither 
party  brings  it  to  a  hearing.  Poggenberg  v.  Mest'aniz,  46  Misc.  Eep. 
110. 

Notes  to  section  346,  "Costs  upon  Appeal;  Amount." 

Exemption  as  to  costs  on  appeal  by  the  city  in  action  to  recover 
a  penalty. —  The  concluding  part  of  section  29  of  the  Municipal  Court 
Act  provides  that  "  no  fees  or  costs  shall  be  demanded  of  the  said 
city  of  New  York  or  any  board  or  officers  thereof  in  any  such  suit  or 
proceeding."  The  words  "  any  such  suit  or  proceeding "  refer  to  an 
action  or  proceeding  to  recover  a  penalty  for  the  violation  of  any  laws 
or  ordinance  brought  in  the  manner  authorized  by  section  29.     In  the 


§§  356-363.  Costs  and  Fees.  123 

case  at  bar  the  plaintiff  and  appellant,  upon  its  defeat  in  the  court 
below,  had  the  benefit  of  the  concluding  part  of  the  sentence,  and  it  is 
extremely  doubtful  whether  the  exemption  as  to  costs  covers  the  fur- 
ther aggressive  proceeding  by  the  appeal.  To  have  the  question  which 
is  presented  in  a  number  of  other  cases  before  us  settled,  the  costs  of 
the  appeal  will  be  imposed  in  the  order  of  affirmance  and  the  appellant 
may  have  leave  to  appeal  to  the  Appellate  Division.  Health  Depart- 
ment of  the  City  of  New  York  v.  Owen,  Supreme  Court,  Appellate  Term, 
Freedman,  P.  J.,  Bischoff  and  Blanchard,  JJ.,  N.  Y.  Law  Journal, 
December  11,  1903.  Reported  in  42  Misc.  Rep.  221,  as  to  action  to 
recover  a  penalty  from  a  physician  for  failure  to  report  facts  relative 
to  birth  of  a  child  as  required  by  Charter,  section  1237. 

Notes   to   section   356,   "  Fees   in   Summary   Proceedings." 

Costs  on  discontinuance. —  Where  a  landlord  voluntarily  discontinues 
before  final  submission  summary  proceedings  taken  by  him  in  the 
Municipal  Court  of  the  city  of  New  York  since  the  passage  of  Laws 
1902,  chapter  580,  the  tenant  is  entrtled  as  costs  to  his  actual  dis- 
bursements to  the  extent  of  $10  besides  the  fees  of  any  witnesses  at- 
tending from  another  county,  and  this  under  Code  Civil  Procedure, 
section  3076,  subdivision  2.     Cohen  v.  Melle,  43  Misc.  Rep.  79. 

§  350.  Fees  on  docket  of  judgment,  in  a  county  clerk's  office. 

—  Repealed  by  Laws  1903,  chap.  144. 

Notes  to  section  361,  "Saving  Clause." 

Right  to  appeal  reserved. —  The  right  of  a  person  who,  prior  to  the 
time  when  the  New  York  Municipal  Court  Act  (Laws  1902,  chap.  580, 
§  257)  took  effect,  had  recovered  a  judgment  in  that  court  by  default 
to  appeal  from  an  order  opening  the  default  and  setting  aside  the  judg- 
ment, was  preserved  by  section  361  of  the  Municipal  Court  Act.  Such 
an  appeal  no  longer  lies.     Johnson  v.  Manning,  80  App.  Div.  368. 

Notes  to  section  363,  "  Sections  of  the  Code  not  Applicable." 

See  section  20,  "  Code,  Rules  of  Supreme  Court  Applicable ;  when." 


INDEX. 


Account,  authority  to  order  exhibition  of,  26. 
exhibition  of,  may  be  ordered,  88. 
stated,  when  not  proven,  35. 
Action,  amount  of  sum  to  recover  less  than  $250  or  $500,  where  to  be 
brought,  32. 
changing  cause  of,  88. 
by  the  city  of  New  York  for  the  recovery  of  a  penalty,  summons 

and  costs  in,  26. 
by  city  of  New  York,  where  to  be  brought,  67. 
jurisdiction  of,  by  and  against  the  city  of  New  York,  31. 
in  what  district  to  be  brought,  65,  66,  67. 
erroneous  transfer  of,  appeal  from  order,  119. 
fictitious  name,  when  judgment  and  execution  void,  106,  108. 
jurisdiction  of,  29-32. 

to  direct  or  set  aside  verdict,  vacate,  amend,  or  modify  judg- 
ment, or  final  order  in,  31. 
when  may  be  continued  before  another  justice,  64. 
by  nonresident  plaintiff  against  foreign  corporation,  where  to  be 

brought,  67. 
against  person  for  refusing  to  pay  wages  of  judgment  debtor,  42, 

46,  55,  86,  105,  107. 
removal  of  repealed,  56,  63. 
tort,  when  will  will  be  deemed  one  in,  85. 
transfer  of,  how  made,  66,  67. 
Adjournment  longer  than  eight  days,  undertaking,  justification  of  sure- 
ties, 90. 
Administrator,  jurisdiction  in  action  against,  31. 

Affidavit  to  obtain  substituted  service  of  summons,  what  to  state,  72. 
amending  as  to  service  of  summons,  73. 
to  obtain  attachment,  what  to  contain,  77. 
to  obtain  warrant  of  attachment  insufficient,  77. 
contents    of,    when   third    party   interpleads    in    action    to   replevy 

chattel,  79. 
attached  to  appellant's  brief  on  appeal  not  considered,  116. 
attendance  of  witnesses,  no  charge  allowed  unless  produced,  stat- 
ing number  of  days  of  actual  attendance,  122. 
Affirmative  defenses,  payments,  95. 
Agent,  money  had  and  received  by,  acceptance,  discharge,  95. 

[125] 


1  -2  6  Index. 

Alias.     (See  Summons.) 

Amendment  of  technical  errors  in  pleading,  47,  55,  56. 

of  affidavit  of  service  of  summons,  73. 

of  petition  or  answer  in  summary  proceedings  to  recover  possession 
of  real  property,  30. 

of  pleadings  changing  cause  of  action,  88. 

of  answer  in  summary  proceedings,  90. 
Amount,  action  to  recover  less  than  $250  and  costs,  or  $500  and  costs, 

where  to  be  brought,  32. 

bill  of  particulars  over  $500,  35. 

of  counterclaim  in  excess  of  court's  jurisdiction,  87. 

to  be  levied   upon  must  be   stated  in   execution   against  wages  or 
salary  of  judgment  debtor,   105. 

over  jurisdiction,  remitting  excess,  35,  36,  97,  99. 

of  sum  of  money  to  confer  jurisdiction,  29. 

value  of  chattels,  how  determined  as  to  jurisdiction,  44. 
Answer.     (See  also  Pleading.) 

amendment  of,  in  summary  proceedings,  30,  96. 

negative  pregnant,  86. 

new  matter,  86. 

office  address,  or  place  of  business  to,  87. 

payment  is  an  affirmative  defense  and  must  be  pleaded,  87. 

usury  is  a  personal  defense,  87. 
Apartment  hotel  lien,  45. 
Appearance  by  person  forbidden  to  practice,  73. 

by  attorney  necessary  to  obtain  costs,  73,  85,  121. 
Appeal,  right  to,  preserved,  123. 

when  must  be  taken,  112. 

how  taken,  112. 

rules  for  the  hearing  of,  112,  113,  114,  115,  116. 

from  this  court,   112-115. 

from  City  Court  of  the  city  of  New  York,   112-115. 

Appellate  Term,  Supreme  Court,  115. 

Appellate  Division,  Second  Department,   116. 

delay    in    deciding,    in    Second    Department    from    this    court,    ex- 
plained,  116. 

affidavits  attached  to  appellant's  brief,  not  considered,  116. 

right  to  file  amended  affidavit  of  service,  cannot  be  considered  on, 
72,  73. 

Appellate  Division  has   power   to  modify   judgment  in   action  to 
recover  a  chattel,  80. 

appellant's  brief  cannot  controvert  return,  91,  119. 

appellate  court  concluded  by  return,  91,   119. 

from  counterclaim  in  excess  of  the  court's  jurisdiction,  87. 

corrected  judgment,  116. 


Index.  127 

Appeal  — (Continued) : 

effect  of  failure  to  make  timely  objection,  119. 

exceptions  to  be  heard  in  first  instance,  power  of  Appellate  Term 
and  Appellate  Division,  history  of,   117. 

erroneous  transfer  of  action,  119. 

judgment  by  default  is  appealable,  98,  101. 

judgment  by  default  is  not  appealable,  98,  101,  117,  118. 

jurisdiction   of   summary   proceedings  may  be  raised   for  the  first 
time  on,  47. 

what  orders  are  appealable,  101,  117. 

order  vacating  attachment,  not  appealable,  79. 

from  order,  erroneous  transfer  of  action,  119. 

order  denying  motion  to  vacate  order  of  arrest  not  appealable,  75, 
101,  117. 

order  opening  default  is  not  appealable,  101,  123. 

order  sustaining  or  overruling  a  demurrer  not  appealable,    118. 

order  vacating  judgment  not  rendered  in  time  is  appealable,  101. 

return  and  statements  of  brief,  119. 

statutory,  119. 

to  review  taxation  of  costs,  must  be  from  the  judgment,  118,   122. 

sufficiency  of  testimony,  erroneous  rulings,   120. 

in  summary  proceedings  to  recover  possession  of  real  property,  30. 

vacating  court's  void  judgment,  the  order  is  appealable,  91,  119. 

waiver  of,  service  of  amendments  to  case,  119. 
Application,  ex  parte,  63. 
Arrest.     (See  also  Execution.) 

in  what  cases  to  be  granted,  73. 

cannot  be  had  in  action  on  instalment  payments,  84. 

discharge  of  defendant  from,  when,  98. 

execution  against  the  body,  subsequent  issue,  106,  108. 

of  female,  when,  73. 

in   action  to   foreclose   a   lien,   what  must  be   alleged   in  order   to 
obtain  order  of,  83,  84. 

judgment  where  defendant  liable  to,  execution  must  be  issued,  98, 
106. 

jurisdiction  to  issue  order  of,   31. 

limit  of  amount,  in  certain  cases,  74. 

order  denying  motion  to  vacate  is  not  appealable,  50,  65,  101. 

sale  of  entire  retail  stock  to  one  person,  75. 
Articles  used  by  undertaker  in  business,  exemption  from  execution,  106. 
Artisan's  lien  dependent  on  continued  possession,  44. 
Assault  and  Battery,  no  jurisdiction  to  recover  damages  in  action  for, 
31. 

on  street  car,  the  action  is  for  personal  injuries,  40. 


128  Index. 

Assignment  of  cause  of  action  to  enable  suit  to  be  brought  in  a  par- 
ticular court,  25,  26. 

attack  on,  when,  86. 
Association,  liability  of  political,  for  debts,  41. 
Attachment,  affidavit  to  obtain  warrant  of,  what  to  contain,  75. 

defendant  not  personally  served,  judgment  by  default,  47. 

jurisdiction  to  issue  warrant  of,  31. 

effect  of  failure  of  return  to  excuse  due  service  of  summons,  76. 

order  vacating,  not  appealable,  79. 

warrant  of,  what  to  contain,  75. 

warrant  of,  must  be  signed  by  plaintiff's  attorney,  77. 

note  questioning  above,  77. 

when  summons  has  not  been  personally  served,  76,  78. 
Attendant,  rules  relative  to,  61. 

Attorney-General  may  take  out  summons  in  action  for  penalty,  and  not 
pay  fees,  26,  70. 

Bail,  cash  stands  in  place  of,  74. 

Bankruptcy,  guarantor  for  rent  held  liable,  33. 

does  not  terminate  a  lease,  33. 
Bias  or  prejudice  of  justice,  90. 
Bill  of  discovery,  not  authorized,  26. 
Bill  of  particulars,  defined,  51,  84. 

power  to  order,  governed  by  Municipal  Court  Act,  84. 

for  over  $500,  limit  of  amount  of  jurisdiction,  35. 

is  an  amplification  of  the  complaint,  40. 
Board  of  estimate,  etc.,  to  provide  for  expenses  of  courts,  15,  19,  24. 
Boarding-house  keepers,  lien,  45,  81. 
Board  of  justices,  duties  of,  etc.,  57. 

meetings  of,  to  be  public,  57. 

to  make  rules,  57. 
Bond,  bastardy  or  abandonment,  jurisdiction  in  action  upon,  29. 

jurisdiction  in  action  upon  a  surety  bond,  29. 

for  payment  of  money,  jurisdiction  in  action  upon,  29. 

of  a  marshal,  in  what  court  may  be  prosecuted,  110. 

of  a  marshal,  jurisdiction  in  action  upon,  29. 

of  marshal,  action  on,  no  jurisdiction  beyond  $500,  51. 

action  against  surety  upon  a  marshal's,   110. 

what  is  necessary  to  obtain  judgment  against  surety,  110. 

jurisdiction  in  action  against  foreign  corporation  as  surety  upon, 
of  a  marshal,   111. 
Books,  discovery  of,  not  authorized,  26. 

penalty  for  refusal  to  exhibit  stock,  44. 

power  to  order  examination  of,  88, 


Index.  129 

Breach  of  contract.     (See  Contract.) 

Brief,  statements  in  appellant's,  not  supported  by  return,  not  consid- 
ered on  appeal,   119. 
Brokers'  commissions,  when  not  entitled  to  commission  on  a  loan,  33. 

authority  to  sell,  33. 

constitutionality  of  Penal  Code  requiring  written  authority  to  sell, 
33,  34. 

construction  of  section  640d,  Penal  Code,  34. 

sales  for  future  delivery,  35. 
Brooklyn,  election  of  justices  in  borough  of,  11. 

districts  in,  21. 
Building  contract,  damages  for  breach  of,  35. 
Business,  limitations  of  the  legislative  power  to  regulate,  33. 

Cabs  standing  in  front  of  hotels,  license  fee,  43. 
Calendar  of  reserved  cases,  57. 

restoring  case  to,  63,  73,  98. 
Carrier,  measure  of  damages  against,  36. 

failure  to  make  delivery  within  reasonable  time,  proof  of  notice,  93. 

liability  for  value  of  freight  destroyed  by  fire,  93. 

place  of  delivery,  how  determined,  93. 

custom  not  admissible  to  vary  terms  of  contract,  93. 

proof  necessary  to  establish  negligence  against,  93. 

receipt  for  goods  construed,  93. 
Cartmen,  public,  when  not  entitled  to  lien,  46. 
Case  stricken  from  calendar,  when  can  be  restored,  63. 

restoring  to,  73. 
Cause  of  action,  assignment  of,  25,  26. 

changing,  88. 
Challenges  to  jurors,  94. 
Chattels,  jurisdiction  in  action  to  recover,  30. 

jurisdiction  in  action  to  foreclose  a  lien  upon  a,  30. 

jurisdiction  in  replevin  to  recover,  how  determined,  44. 

in  action  to  recover  a,  interpleader  permitted,  55. 

failure  of  defendant  to  demand  judgment  for  return  of  a,  does  not 
prevent  subsequent  action,  79. 

omission  to  demand  return  of,  80. 

neglect  to  demand  return  of,  81. 

when  mortgagee  should  be  made  party  defendant  in  action  to  fore- 
close, 81. 

when  no  body  execution  to  issue  in  action  to  foreclose,  81. 
Chattel  mortgage,  section  139  does  not  prevent  taking  possession,  36 

power  of  partner  to  execute  to  borrow  money,  39. 

when  action  is  not  upon,  45,  82. 

title  of  third  person  in,  95. 


130  Index. 

City  Court  of  the  city  of  New  York,  action  to  recover  less  than  $250 
and  costs  cannot  be  brought  in,  32. 
amended  rule  as  to  advancing  action  to  recover  less  than  $250  to 
the  special  calendar,  32. 
City  of  New  York,  summons  and  costs  in  actions  for  recovery  of  a 
penalty,  2G. 
jurisdiction  in  aitions  against  the,  31. 
action  by  or  on  behalf  of,  where  to  be  brought,  67. 
Attorney-General  and  Corporation  Counsel  may  issue  summons  in 

action  by,  70. 
question  as  to  costs  on  appeal  in  action  to  recover  a  penalty,  122. 
Clerks,  appointment  of,  15. 

and  assistant  clerks,  removal  of  veteran,  25. 
continuance  in  office  of  certain,  15,  23. 
duties  of  the,  109. 
payment  of  salaries  of  certain,  16. 

to  keep  office  open  from  9  a.  m.  to  4  p.  m.,  except  July  and  Au- 
gust, 109. 
rules  relative  to,  61. 

to  receive  all  money  collected  by  marshal,  111. 
to  pay  over  money  to  person  entitled  thereto  on  demand,  112. 
to  hold  costs  and  disbursements  of  appeal  to  abide  event  thereof, 

112. 
must  tax  costs  and  insert  them  in  the  judgment,  121. 
must  enter  costs  in  his  docket  book,  121. 
must  tax  costs  and  prospective  fees  allowed  by  the  appellate  court, 

121. 
must  tax  costs  of  appeal,  121,  122. 
Code,  rules  of  Supreme  Court,  when  applicable,  64. 
Collision,  when  question  of  negligence  for  the  jury,  94. 
Commission  of  salesmen,  construction  of  contract  for,  41. 
Commissioner  of  public  works  to  provide  furniture,  books,  blanks,  etc., 
for  courts,  15,  20,  24. 
of  sinking  fund  to  secure  rooms  for  courts,  15,  20,  24. 
Complaint.     (See  also  Pleading.) 

what  must  be  alleged  in  action  against  person  for  refusing  to  pay 
wages  of  judgment  debtor,  86. 
Compromise,  party  may  buy  his  peace,  85,  94. 
Comptroller  to  pay  salaries,  16,  20,  24. 
Conditional  sale  of  personal  property,   conversion  based  on  breach  of 

contract  for,  36. 
Confession,  jurisdiction  to  render  judgment  by,  31. 

jurisdiction  to  vacate,  remand,  or  modify  judgment  by,  31. 
Consent,  jurisdiction  to  render  judgment  by,  31. 
Continuance  of  action  before  another  justice,  64. 


Index.  131 

Constitutionality  of  Penal  Code  requiring  written  authority  for  broker 
to  sell,  33,  34. 

limitations  of  legislative  power  to  regulate  business,  33. 

of  additional  Personal  Property  Exemption  Law,  106. 

as  to  order  of  arrest,  74. 
Contract,  breach  of,  jurisdiction  to  recover,  in  sale  of  a  horse,  47. 

assault  on  street  car,  actions  for  breach  of,  40. 

for  commissions  by  salesmen,  construed,  41. 

damages,  breach  of,  37. 

effect  of  prior,  33. 

express,  and  quantum  meruit  in  pleading,  88. 

evidence  of  custom  not  admissible  to  vary  terms  of,  93. 

interpleader  in  action  permitted,  55. 

for  manufacture  of  goods,  statute  of  frauds,  41. 

§wasi-jurisdiction  to  recover  voluntary  payment  of  a  fine,  40,  43. 

ratification  of  contract,  41. 

to  remove  building,  damages  for  breach  of,  35. 

of  traveling  salesman,  breach  of,  41. 

usurious,  when  void,  87. 

violation  of  penal  statute  in  approach  to,  34. 
Conversion  based  on  breach  of  contract  for  the  conditional  sale  of  per- 
sonal property,  36,  82. 

demand,  when  necessary,  36,  82. 

infancy  as  a  defense  to  an  action,  39. 
Copartnership.     (See  Partnership.) 
Corporation.     (See  also  Association;  and  Foreign  Corporation.) 

jurisdiction  in  actions  against  domestic  or  foreign,  31. 

verification  of  petition  in  summary   proceedings  by  domestic  cor- 
poration, 47. 

ordinance,  where  action  to  be  brought,  67. 

no  costs  in  action  for  penalty  for  violation  of,  70. 

foreign  corporation,  action  against,  by  nonresident  plaintiff,  in  what 
district  action  to  be  brought  against,  67. 

proof  necessary  in  action  against,  51. 
Corporation  counsel  may  take  out  summons  in  his  own  name,  etc.,  and 

not  pay  fees,  27,  70. 
Costs  in  actions  by  city  of  New  York  for  recovery  of  penalties,  26,  70. 

appearance  by  attorney,  necessary  to  obtain,  73,  85. 

of  appeal  to  Appellate  Term  not  taxable  when  cause  not  brought 
to  hearing,  122. 

clerk  must  tax  prospective  fees,  121. 

to  defendant  upon  voluntary  discontinuance  by  plaintiff,  68,  96,  120. 

discontinuance  of  summary  proceedings,  68,  96,  123. 

when  defendant  is  entitled  to,  120. 

what  necessary  to  recover,  121. 


132  Index. 

Costs  — (Continued) : 

exemption  as  to,  on  appeal  by  city  in  action  to  recover  penalty,  122, 
123. 

fees  on  docket  ot  judgment  in  county  clerk's  office,  repealed,  123. 

notice  of  appearance  by  attorney,  necessary  to  obtain,  85. 

right  to  discontinue  on  payment  of,  68. 

taxation  of,  121. 

where  verdict  is  set  aside,  99. 

verified  pleading,  necessary  to  obtain,  85. 
Court,  expenses  of  municipal,  15,  19. 

as  distinguished  from  the  justice,  26. 

order  by,  on  opening  default,  98. 

order,  what  it  should  contain,  63. 

power  of,  to  order  exhibition  of  accounts,  88. 

rooms,  furniture,  and  stationery,  how  provided  for,  16. 

rules  of  municipal,  have  force  of  law,  25. 
Counsel  and  judge  in  examination  of  witnesses,  94. 
Counterclaim,  new  matter  in  answer,  86. 

where  amount  is  in  excess  of  court's  jurisdiction,  87,  117. 
County  Court  of  Kings  county,  action  to  recover  less  than  $250  and 

costs  cannot  be  brought  in,  32. 
Criminal    conversation,   no   jurisdiction   in  action  to   recover   damages 

for,  31. 
Custom,  evidence  of,  not  admissible  to  vary  terms  of  contract,  93. 

Damages  for  breach  of  contract,  37. 

employment  and  wages,  37. 

jurisdiction  to  recover,  in  action  for  breach  of  contract,  29. 

jurisdiction  to  recover,  in  action  to  recover  a  chattel,  30. 

jurisdiction  to  recover,  in  action  for  fraud  and  deceit,  30. 

jurisdiction  to  recover,  in   action   for  an   escape,  30. 

jurisdiction  to  recover,  in  action  for  personal  injuries,  31. 

no  jurisdiction  to  recover,  in  certain  actions,  31. 

measure  of,  against  carrier,  36. 
Death  or  removal  of  justice  not  to  impair  proceedings,  64. 
Deceit,  jurisdiction  in  action  for  damages  for,  30. 

in  sale  of  a  horse,  47. 
Decision  by  another  justice  cannot  be  set  aside,  50,  52,  54,  63,  90. 

by  justice  must  be  within  fourteen  days,  90. 

jurisdiction  is  lost,  if  not  decided  within  fourteen  days,  55,  90. 

jurisdiction   of   another    justice,    reviewing   exception   to   the   rule, 
90,  99. 
Default,  jurisdiction  to  open,  31. 

court  may  impose  conditions  upon  opening,   101. 

judgment  may  stand  as  security  on  opening,  100. 


Index  133 

Default  — (Continued) : 

opening  of,  must  be  by  order  of  the  court,  25,  26. 

issue  not  joined  when  defendant,  is  taken,  85. 

in  attachment  case  where  defendant  not  personally  served,  47. 

reviewing  decision  of  another  justice,  exception  to  the  rule,  91. 

demand  for  jury  trial  after  opening,  91,  98,  100. 

judgment  by,  is  appealable,  98,  101,  117. 

judgment  by,  is  not  appealable,  98,  101,  117. 

order  opening,  is  not  appealable,  101. 

order  by  the  court  on,  98. 

setting  down  case  for  trial,  99. 
Defense,  payment  is  an  affirmative,  87,  95. 
Demand,  when  necessary  for  conversion,  36. 

for  rent,  defect  in  allegation  of  service  of  notice  of,  47. 

for  jury  trial  after  opening  default,  91. 

on   transfer   to   proper   district,    68. 
Demur,  when  defendant  may,  87. 
Denial.     (See  General  Denial.) 
Discontinuance,  when  leave  refused,  68,  95,  96. 

of  summary  proceedings,  costs  on,  68,  96,  123. 

voluntary   by   plaintiff,   costs   on,   68,   96. 

rights  to,  upon  payment  of  costs,  68,  97. 
Discovery  of  books  and  papers  not  authorized,  26. 
Dismissal  on  the  merits,  judgment  of,  97. 

for  nonappearance,  restoring  case  to  calendar,  98. 
Districts,  in  borough  of  Manhattan,  12,  16. 

in  borough  of  Brooklyn,  21. 

in  what,  action  to  be  brought,  65. 
Dog,  bite  of,  what  must  be  shown,  49. 
Domestic  corporation.      (See  Corporation.) 

Domestic  Commerce  Law,  unlawful  detention  of  milk  cans,  43. 
Duress,  what  allegations  necessary,  40. 

pleading,  86. 

Election  of  justices,  11,  14,  19,  20. 

Employment  and  wages,  damages,  37. 

Escape  from  jail  liberties,  jurisdiction  in  action  to  recover  damages 

for,  30. 
Evidence  of  account  stated,  when  not  proven,  35. 

cost  price,  when  evidence  of  value,  45. 

of  custom  not  admissible  to  vary  terms  of  contract,  93. 

new  trial  upon  ground  of  newly  discovered,  31. 

parol,  when  inadmissible  as  to  omission  in  lease,  54. 

pleading  as,  95. 

proof  necessary  to  establish  negligence  of  carrier,  93. 


134  Index 

Evidence  —  (Continued): 

proof  of  notice  to  consignee  of  arrival  of  goods,  93. 
sufficient  to  establish  liability  of  wife  for  necessaries,  38. 
of  value  of  lost  goods,  96. 
verdict  against  weight  of,  new  trial,  99,  100. 
Execution,  additional  personal  property  exempt  from,  in  certain  cases, 
103,  106. 
amount   to   be   levied   upon   must   be  stated   in   execution   against 

wages  or  salary  of  a  judgment  debtor,  105. 
arrest  must  be  issued  where  defendant  liable  to,  98,  106,  108. 
against   body  or  person,  where  cannot  be  issued  unless  order  of 
arrest  has  been  issued,  65. 
when  none  can  issue,  81. 
in  action  to  foreclose  lien,  83. 
subsequent  issue,  106. 
constitutionality  of   Additional  Personal  Property  Law,  106. 
exemption  from  execution  of  salary  of  policeman,  107. 

of  salary  of  public  servant,  107. 
failure  to  issue  in  time,  subsequent  issue  of,  108. 
fees,   prospective,    of    county   clerk   to    be   omitted  when  issued  to 

a  marshal,  102. 
fictitious  name;  when  the  judgment  is  fatally  defective  and  execu- 
tion issued  thereon  is  void,  54,  106,  108. 
upon  a  judgment  for  necessaries,  rent  due  is  not  necessaries  sold, 

107. 
jurisdiction  to  grant  or  vacate  stay  of,  31. 
how  issued,  102. 
motion  for  order  granting  leave  to  issue,  under  section  1391,  Code 

Civ.  Proe. ;  parties;  notice,  107,  108. 
time  to  be  issued,  within  what,  102,  10S. 

failure  to  issue  in,  75,  108. 
transcript  issued,  none  to  issue  from  this  court  after,  102. 

not  to  be  issued  while  execution  from  this  court  is  not  re- 
turned, 102. 
trust  fund;  will,  108. 
Executor,  jurisdiction  in  action  against,  31. 
Exempt  property,  additional,  27,  76,  103 

articles  used  by  undertaker  in  business,  106. 
Exemption  from  jury  duty,  92. 
Expenses  of  courts,  15,  19,  20.  24. 

jurisdiction  in  action  to  recover  for  personal  injury,  31. 
Ex  parte  applications,  25,  26,  63. 

False  imprisonment,  no  jurisdiction  to  recover  damages  for,  31,  50. 
Female,  no  arrest  of,  except  for  willful  injury  to  person  or  property,  73. 


Index  135 

Fees.     (See  also  Costs.) 

for  summons  not  to  be  paid  by  attorney-general  or  corporation 
counsel,  27. 

for  cabs  standing  in  front  of  hotels,  license,  43. 
Fictitious  name,  when  judgment  is  fatally  defective  and  an  execution 

issued  thereon  is  void,  54,  106,  108,  109. 
Fine,  jurisdiction  in  action  to  recover  a,  29. 

voluntary  payment  of,  under  a  mistake  of  law  cannot  be  recovered, 
40,  43,  44. 
Fire  department,  failure  to  provide  such  means  of  communication  as  the 

fire  commissioner  shall  direct,  43. 
Foreclosing  lien  upon  a  chattel,  jurisdiction  in  action  for,  30. 
Foreign  corporation.     (See  also  Corporation.) 

jurisdiction  in  action  against,  31 

as  surety  upon  a  city  marshal  bond,  37,  42. 
Fraud.     (See  also  Statute  of  Frauds.) 

jurisdiction  in  action  for,  30. 

new  trial  on  the  ground  of,  31. 

cannot  be  shown  under  a  general  denial,  39. 

and  deceit  in  sale  of  a  horse,  47. 

in  the  sale  of  merchandise  in  bulk,  47. 
Furniture  of  courts,  how  provided  for,  16,  20,  24. 

Garage-keeper's  lien,  45. 

General  denial,  fraud  cannot  be  shown  under  a,  39. 

assignment,  attack  of,  under  a,  86. 
Guarantor  for  rent  held  liable  in  bankruptcy,  33. 

Horse,  breach  of  warranty  in  the  sale  of  a,  47. 

Hotel  liens,  45. 

Household  goods  no  longer  excluded  from  law  relating  to  conditional 

sales  agreements,  82. 
Husband.     (See  also  Married  Women;  Wife.) 

or  wife,  no  jurisdiction  in  action  to  recover  damages  for  loss  of 

society  of,  31. 
and  wife,  medical  services,  37. 

Infancy  as  a  defense  in  action  for  conversion,  39. 
Immaterial  variance  in  pleading  to  be  disregarded,  88. 
Imprisonment  no  jurisdiction  in  action  for  false,  50. 
Injury,  personal,  proof  of  damages  for,  119. 

to  passenger  on  street  car,  when  action  for  breach  of  contract  and 
net  for  assault,  50. 
Inn  liens,  45. 
Installments  due  upon  a  bond,  jurisdiction  in  action  upon,  29. 


136  Index 

Interpleader,  when  permitted,  55,  89. 

third  party  may  interplead  in  action  to  replevy  chattel,  79. 
Interpreters,  continuance  in  office  of  certain,  15. 

payment  of  salaries  of  certain,  1G. 
Issue,  not  joined  when  defendant's  default  is  taken,  85. 

when  not  joined,  85. 

Jail  liberties,  jurisdiction  to  recover  damages  from  an  escape  from  the, 

30. 
Judgment,  amending  docket  of,  103. 
amending  judgment,  97,  120. 

arrest  for,  where  defendant  liable  to,  execution  must  be  issued,  98. 
by  confession,  jurisdiction  to  render  judgment  by,  31. 
by  consent,  jurisdiction  to  render,  31. 
debtor,  action  against  person  for  refusing  to  pay  wages  to,  46,  55, 

86,  105 
by  default  is  appealable,  98,  101,  117. 

not  appealable,  98,  101,  117. 

when  cannot  be  rendered  by,  76,  78. 

in   attachment  action  where  defendant  not  personally  served, 
47,  78. 
demand  for  jury  trial  after  default,  91. 
by  default,  vacating.     (Sec  Default.) 
of  dismissal  on  the  merits  at  close  of  case,  97. 
erroneous  nonsuit,  96. 

erroneous  ruling,  when  will  not  be  disturbed  for,  120. 
excess  of  amount  of  jurisdiction,  remission  of,  97,  98. 
execution  on,  how  issued,  102. 

fees  on  docket  of,  in  county  clerk's  office,  repealed,  123. 
fictitious  name,  when  defective,  54,  106,  108. 
jurisdiction;  amotint  involved;  remission  of  excess,  97,  98. 

in  action  upon  a,  29. 

to  render,  in  an  action,  31. 

to  vacate,  amend,  or  modify  a,  31. 
lien  of,  103 

merits,  when  it  is  on  the,  97,  120. 
mechanic's  lien,  in  action  to  enforce,  30. 
motion  to  amend,  97,  120. 

additional  personal  property  exempt  from,  27,  103. 
for  plaintiff  on  the  pleadings  when  proper,  86,  8S,  90. 
redocketing  amended  judgment,  103. 
remitting  excess  of  amount  over  jurisdiction,  98. 
may  stand  as  security  on  opening  default,  100. 

supplementary  proceedings  on,  transcript  filed,   jurisdiction   of   Su- 
preme Court,  99,  102. 


Index  137 

Judgment  —  (Continued) : 

Supreme  Court  cannot  vacate  judgment  of  this  court,  52,  99,  102. 

time  of  making  motion  to  set  aside,  100. 

not  rendered  in  time,  vacating,  100,  102. 

vacating  court  void,  91,  119. 

because  material  witness  did  not  appear  on  trial,  100. 
when  Supreme  Court  cannot,  52,  99,  102. 

on  verdict,  entering,  92. 

void,  vacating,  91,   119. 
Judge.     (See  Justice.) 

Jurisdiction,  action  to  recover  less  than  $250  or  $500  and  costs,  where 
to  be  brought,  32,  51,  56,  111. 

amount  involved;  remission  of  excess,  35,  53,  97,  98. 

assault  and  battery,  action  for  damages  for,  no,  48,  55. 

attachment,  when  court  has  no,  78. 

bill  of  particulars  over  $500,  35. 

chattel  mortgage,  when  action  is  upon  a,  and  where  it  is  not,  83. 

counterclaim,  where  it  is  in  excess  of  the  court's,  87,  117. 

damages,  action  to  recover,  in  certain  actions,  no,  31. 

excess  of,  remitting,  to  retain,  35,  53,  97,  98. 
no  equity,  54. 

false  imprisonment,  action  to  recover  damages  for,  no,  50. 

against  foreign  corporation  as  surety  upon  a  city  marshal's  bond, 
37,  42,  111. 

is  lost  unless  decision  filed  within  fourteen  days,  55,  90. 

of  the  Municipal  Court  of  the  city  of  New  York,  29-32. 

no,  to  recover  damages  in  certain  actions,  31. 

objection  to,  32. 

of  action  against  person  indebted  to  judgment  debtor,  42,  46,  55. 

quasi  contract,  voluntary  payment  of  a  fine,  40,  43. 

remitting  excess  of  amount  to  return,  35,  53,  97,  98. 

in  replevin,  how  determined,  44. 

under  section  20,  26,  64. 

substituted  service  of  summons,  proof  to  acquire,  32. 

of  summary  proceedings  may  be  varied  for  the  first  time  on  ap- 
peal, 47. 

not  lost  by  raising  question  of  title  collaterally,  47,  89. 

to  direct  or  set  aside  verdict  or  grant  or  deny  motion  for  new  trial 
in  summary  proceedings  to  recover  possession  of  real  property,  30. 

to  set  aside  final  order  in  summary  proceedings,  47. 

waiver  of,  32. 
Jurors,  challenge  to,  94. 
Jury,  credibility  of  expert  witness  is  to  be  determined  by  the  jury,  94. 

exemption  from  jury  duty,  92. 

when  question  of  negligence  for  collision  is  question  for,  94. 


13S  Index 

Jury  —  (Continued) : 

demand  for,  after  judgment  by  default  has  been  opened,  91,  98,  100. 

penalty  for  misconduct  of  officers  drawing,  92. 

right  and  waiver  of,  92. 

in  summary  proceedings  to  recover  the  possession  of  real  property, 
30. 

waiver  of,  92. 
Justice,  as  distinguished  from  the  court,  26. 

accounts,  no  power  to  order,  26. 

action,  when  may  be  continued  before  another,  64. 

to  appoint  clerks,  15. 

bias  or  prejudice  of,  64,  90. 

board  of,  duties  of,  etc.,  57. 
to  make  rules,  57. 

charge  of,  when  error,  49. 

continuance  in  office  of  certain,  15,  23. 

decision  of  another,  cannot  be  set  aside  by,  50,  52,  54,  63,  90,  91. 

duty  of,  to  decide  within  fourteen  days,  90. 

discussion  or  remarks  made  by,  94. 

has  no  authority  to  restore  case  to  calendar,  52,  98. 

discretion  of,  as  to  costs  in  setting  aside  verdict,  99. 

disqualification  of,  transfer  to  another  district,  63. 

election  of,  11,  14,  19,  20. 

in  examination  of  witnesses,  94. 

exhibition  of  accounts,  no  power  to  order,  26. 

expiration  of  term  of,  successor  may  determine  motion,  99. 

jurisdiction  is  lost  by,  if  not,  decision  not  filed  within  fourteen  days, 
55,  90. 

payment  of  salaries  of  certain,  16. 

power  to  order  exhibition  of  accounts  is  conferred  upon  the  court, 
not  the,  88. 

qualification  of,  11. 

removal  of,  11,  25. 

reviewing  decision  of  another,  exception  to  the  rule,  91,  99. 

salary  of,   12,  16. 

successor  of,  may  determine  motion,  64. 

summary  proceedings,  has  power  to  set  aside  final  order  in,  52. 
Justification  of  sureties  in  undertaking  on  adjournment  for  longer  than 
eight  days,  90. 

Kings  county,  County  Court  of,  action  to  recover  less  than  $250  and 
costs  cannot  be  brought  in,  32. 

Law,  voluntary  payment  of  a  fine  under  mistake  of,  cannot  be  re- 
covered, 40,  43,  44. 


Index  139 

Lease  not  terminated  by  bankruptcy,  33. 

Legislative  power  to  regulate  business,  limitations  on,  33. 

Levy  on  execution,  how  discharged  pending  appeal,   65,  117. 

Libel,  no  jurisdiction  to  recover  damages  in  action  for  libel,  31. 

License  fee,  cabs  standing  in  front  of  hotels,  43. 

Lien,  artisan's,  dependent  on  continual  possession,  44. 

boarding-house  keeper's,  45,  81. 

upon  a  chattel,  jurisdiction  in  action  to  foreclose,  30. 

on  chattels,  when  mortgagee  should  be  made  party  defendant,  81. 

contents  of  notice  of,  46. 

defined   (person  indebted  to  judgment  debtor),  42,  46,  55. 

foreclosure   of   a,   what   must   allege  in   order   to  obtain   order   of 
arrest,  83,  84. 

of  finder  of  lost  property,  44. 

of  garage- keepers,  45. 

of  hotel,   apartment   hotel,   inn,  boarding  and  lodging-house  keep- 
ers, 45. 

of  lodging-house  keeper,  45. 

lost   property,   finder  has,  44. 

mechanic's,  jurisdiction  of  action  to  enforce  a,  30. 

order  for  repairs  of  a  tenement-house  not  a,  44. 

of  judgments,   103. 

on  personal  property,  execution  against  the  person,  when,  65. 

public  cartman  when  not  entitled  to,  46. 

stallion's  services,  46. 

warehouse-keeper's,  45,  46. 
Lodging-house  keeper's  lien,  45. 
Lost  property,  finder  is  entitled  to,  44. 

Loss  of  service  by  reason  of  personal  injury,  jurisdiction  in  action  for, 
31. 

society   of   husband  or   wife,   no   jurisdiction   to   recover   damages 
for,  31. 

Malicious  prosecution,  no  jurisdiction  to  recover  damages  for,  31. 
Manhattan,  districts   in  borough  of,   12,  16. 

election  of  justices  in,  14,   19. 
Married  woman.     (See  also  Wife.) 

right  of  action  for  wages,  38. 

evidence  as  to  election  to  labor  on  her  own  account,  38. 
Marshal,  action  against  surety  upon  bond  of  a,  110. 

bond  of  a  city,  of  Brooklyn,  its  validity,  110. 

in  action  against  foreign  corporation  having  office  in  the  city 
of  New  York  as  surety  for.  111. 

prosecution  of  bond  of,  no  jurisdiction  beyond  $500,  51. 

in  what  court  bond  of,  may  be  prosecuted,  110. 


140  Index 

Marshal  —  (Continued) : 

bond  of,  by  foreign  corporation  as  surety,  jurisdiction  as  to  amount, 
37,  42. 
against  for  contempt,  112. 

when  execution  may  be  issued  to,  102. 

invalid  levy  upon  goods  of  a  third  person.  110. 

jurisdiction  of  action  upon  bond  of  a,  29. 

liability  for  wrongful  levy,  110. 

mayor  may  suspend  and  remove,  111. 

payment  of  money  received  by,  111. 

must  pay  same  to  clerk  of  court,  111. 

removal  and  suspension  of,  111. 

return  of,  cannot  be  controverted  by  affidavit,  119. 
Master  and  servant,  what  sickness  will  justify  dismissal  of  servant,  39. 
Mayor  may  suspend  and  remove  marshal,  111. 

may  delegate  to  his  secretary  power  and  duty  of  hearing  the  evi- 
dence, 111. 
Medical  expenses,  jurisdiction  in  action  to  recover  in  action  for  per- 
sonal  injury,   31. 
Medical  services,  husband  and  wife,  37. 
Mechanic's  lien,  jurisdiction  of  action  to  enforce,  30. 
Merchandise  in  bulk,  sale  of,  47. 

when  sale  of  entire  stock  of,  is  fraudulent,  76. 
Merits,  judgment  of  dismissal  on  the,  97. 

when  it  is  upon  the,  97. 
Milk  cans,  unlawful  detention  of;  Domestic  Commerce  Law,  43. 
Mistake   of   law,  voluntary  payment   of   a   fine   under,  cannot  be  re- 
covered, 40,  43,  44. 
Money  had  and  received  by  defendant's  agent,  acceptance,  discharge,  95. 
Motion,  to  open  default  not  reviewing  decision  of  another  justice,  91. 

may  be  determined  by  successor  of  judge,  99. 

for  order  granting  leave  to  issue   execution,  under  section  1391, 
Code  Civ.  Proc;   parties;   notice,   107. 

to  set  aside  judgment,  time  of  making,  100. 
Municipal  Court  of  the  city  of  New  York,  board  of  estimate,  etc.,  to 
provide  for  expenses  of,  15,  19,  20,  24. 

action  to  recover  less  than  $250  and  costs  must  be  brought  in,  32. 

as  distinguished  from  the  justice's,  26. 

Name,  fictitious,  when  judgment  defective  and  execution  issued  thereon 

void,  54,   106,    108,   109. 
Necessaries  sold,  rent  due  is  not,  107. 

when  wife  is  liable  for,  38. 
Negligence  of  physician  or  surgeon  in  treatment  of  patient,  40. 

of  carrier,  proof  necessary,  93. 

collision,  when  question  for  the  jury,  94. 


Index  141 

Newly-discovered  evidence,  new  trial  on  the  ground  of,  31. 
New  matter  in  answer,  86. 

New  trial  in  summary  proceedings,  court  may  grant  or  deny,  30. 
jurisdiction  to  grant  a,  31. 
justice  can  grant  in  summary  proceedings  or  set  aside  final  order, 

52. 
verdict  against  weight  of  evidence,  53,  100. 
New  York  city.  (See  City  of  New  York.) 
Nonjoinder  of  parties  in  copartnership,  88. 
Nonresident,  who  shall  be  deemed  a,  66. 

plaintiff  bringing  action  against  foreign  corporation,  where  to  be 

brought,  67. 
plaintiff,   action   by,   against   foreign   corporation   having   place   of 
business  in  the  city  of  New  York,  in  what  district  action  to  be 
brought,  51. 
Nonsuit,  erroneous  judgment,   96. 
Notice,  judicial,  what  court  will  take,  of,  72. 
of  lien,  contents  of,  46. 

to  pay  rent,   defect  in  allegation  of  service  of,  in  summary  pro- 
ceedings, 47. 
to  consignee  of  arrival  of  goods,  93. 

Objection,  effect  of  failure  to  make  timely,  119. 

to  jurisdiction,   32. 

to  nonjoinder  of  parties  defendant  in  copartnership,  87,  88. 
Order,  appeal  from.     (See  also  Appeal.) 

what  orders  are  appealable,  50,  117. 

opening  default  not  appealable,  118. 

sustaining  or  overruling  demurrer,  not  appealable,  118. 

denying  motion  to  vacate  order  of  arrest  not  appealable,  50,  117. 

vacating  attachment,  not  appealable,  79. 

court,  what  should  contain,  57,  63. 

by  the  court  on  opening  default,  98. 

for  interpleader,  when  permitted,  89. 

jurisdiction  to  vacate,  amend,  or  modify  a  final,  31,  46. 

summary  proceedings,  jurisdiction  to  make  final,  31. 

for  tenement-house  repairs  not  a  lien,  44. 

vacating  judgment  not  rendered  in  time,  100,  102. 
Order  of  arrest,  jurisdiction  to  issue,  31. 

in  what  cases  to  be  granted,  73. 

order  denying  motion  to  vacate,  not  appealable,  75. 

in  action  to  foreclose  lien,  what  must  be  alleged  in  order  to  obtain 
an,  83. 

none  can  be  had  in  action  for  instalment  payments,  84. 


142  Index 

Ordinance  corporation,  where  action  to  be  brought,  67. 

no  fees  to  be  paid  by  city  of  New  York   in  such  an  action,  122. 

Partner,  power  of,  to  borrow  money  and  execute  chattel  mortgage,  39. 
Partnership,  defect  of  parties   in  pleading,  87. 
Party,  third,  may  interplead  in  action  to  replevin  chattel,  79. 
Payment  is  an  affirmative  defense,  and  must  be  pleaded,  87,  95. 
Particulars.      (See  Bill  of  Particulars.) 

Penalty,  action  will  lie  for,  although  there  has  been  no  conviction  for 
misdemeanor,  42. 
cab  standing  in  front   of  hotels,  43. 
Domestic  Commerce  Law,  43. 
fire  department,  failure  to  provide  such  means  of  communication 

as  the  fire  commissioner  shall  direct,  43. 
jurisdiction  in  action  to  recover  a,  29. 
milk  cans,  unlawful  detention  of,  4:;. 
railroad  transfers,  recovery  of  statutory,  44. 
stock-books,  refusing  to  exhibit,  liability   for,  44. 
for  misconduct  of  officers  drawing  jurors,  92. 
Person  or  party  indebted  to  judgment  debtor,  action  against,  42,  46,  55, 
86,  105. 
motion  for  leave  to  issue  execution;   parties;  notice,  107. 
Personal  defenses;  payment;  usury,  87. 

injury,  jurisdiction  to  recover  damages  for,  31. 

assault  on  street  car,  the  action  is  for,  40,  50. 
proof  of  damages  for,  119. 
Petition  in  summary  proceedings   to   recover  possession  of  real  prop- 
erty, amendment  of,  30. 
verification  of,  by  domestic  corporation.  47. 
Physician,  liability  in  treatment  of  patient,  40. 
Plaintiff,  in  what  district  to  bring  action,  65,  66,  67. 

nonresident,  in  what  district  to  bring  action  against  foreign  cor- 
poration, 67. 
Pleading.     (See   also  Complaint;    Answer;    Defenses;    General  Denial; 
Reply;  Counterclaim;  Demurrer;  Interpleader.) 
amendment  of,  47,  88,  89. 
to  be  liberally  construed;  Avhen  judgment  for  the  plaintiff  on  the, 

proper,  88. 
defect  of  parties  as  to  copartnership,  87. 
duress,  55,  86. 
as   evidence,  95. 
immaterial   variance   is    to   be    disregarded;    quantum   meruit   and 

express  contract,  88. 
judgment  for  the  plaintiff  on  the,  when  proper,  86,  90. 
minutes  of  trial  on  appeal,  118. 


Index  143 

Pleading  —  (Continued) : 

negative  pregnant,  86. 

payment,   87,  95. 

tort,  when  action  will  be  deemed  in,  85. 

verified,  necessary  to  obtain  costs,  85,  121. 
Policeman,  exemption  from  execution  of  salary  of,  107. 
Power  of  the  court  to  order  exhibition  of  accounts  and  examination  of 
books  conferred  upon  court,  not  the  justice,  88.  ) 

Practice,  rules  of,  58. 

Prohibition,  writ  of,  when  will  not  lie,  64. 
Proof.     (See  Evidence.) 
Property,  additional,  exempt,  27,  76,  103. 

jurisdiction  in  action  to  recover  damages  for  injury  to,  31. 

lost,  finder  is  entitled  to,  44,  79. 

rights,  legislature  has  no  power  to  destroy  existing,  107. 
Public  cartmen,  when  not  entitled  to  lien,  46. 
Public  servant,  exemption  from  execution  of  salary  of,  107. 

Qualification  of  justices,  11. 

Quantum  meruit,  and  express  contract  in  pleading,  88. 

Quasi-contract,  jurisdiction  to  recover  voluntary  payment  of  a,  40,  43. 

Railroad  transfers,  recovery  of  statutory  penalty,  44. 
Real  property.     (See  also  Title.) 

when  title  to,  when  it  is  not  in  question,  89. 

jurisdiction  of  summary  proceedings  to  recover  possession  of,  30. 

constitutionality    of   Penal    Code   requiring   written   authority    for 
broker  to  sell,  33,  34. 
Removal  of  action  repealed,  56,  63. 

of  justice,    11,   25. 

or  death  of  justice,  not  to  impair  proceedings,  64. 

to  proper  district,  68. 

and  suspension  of  marshal  by  the  mayor,  111. 
Rent,  guarantor  for,  held  liable  in  bankruptcy,  33. 

defect  in  allegation  of  service  of  demand  for,  47. 

due  is  not  "  necessaries  sold,"  107. 
Replevin,  abandonment  of,  damages  may  be  recovered,  81. 

jurisdiction  to  issue  requisition  to,  31. 
in,  how  determined,  44. 

for  lost  property  will  lie  in  favor  of  the  finder,  44. 

mortgagee's   possession  under,  not   shown  when  judgment-roll  not 
in  evidence,  82. 

third  party  may  interplead  and  defend,  79. 
Requisition  to  replevy,  jurisdiction  to  issue,  31. 
Rooms  for  courts,  how  provided  for,  16,  20,  24. 


144  Ixdex 

Rules  on  appeal  from  this  court,  112,  113,  114,  115. 

from  City  Court  of  the  city  of  New  York,  112,  113,  114,  115. 

Supreme  Court,  Appellate  Term,  115. 

Appellate  Division,   Second   Department,    116. 
Rules  of  this  court,  board  of  justices  to  make,  57. 

as  to  clerks  and  attendants,  61. 

clerk's  office  to  I  e  closed  at  2  p.  M.  during  July  and  August,  107. 

have  the  force  of  law,  25,  65. 
Rules  of  practice,  58. 

Supreme  Court,  under  section  20,  26,  64. 

Salary  of  justices,  12. 

payment  of,   16,  24. 

of  police  officer  exempt  from  execution,  107. 

of  public  officer  exempt  from  execution,   107. 
Salary  or  wages,  action  for  refusing  to  pay,  of  judgment  debtor,  42,  55, 
86,  105,   107. 

execution  on  judgment  in  action  for  refusing  to  pay  of  judgment 
debtor;  amount  must  be  stated,  105. 
Sale.     (See  also  Conditional  Sale.) 

for  future   delivery,  35. 

of  horse,  47. 

of  merchandise  in  bulk,  47. 
Salesman,  contract  for  commissions  construed,  41. 

services  with  an  association  not  for  business  purposes,  41. 

traveling;   exclusive  services;   breach,  41. 
Scienter,  must  be  shown  when  bitten  by  dog,  49. 

what  evidence  insufficient  to  establish,  49. 
Seduction,  no  jurisdiction  to  recover  damages  for,  31. 
Servant.     (See  Master  and  Servant.) 

Service,  jurisdiction  in  action  for  loss  of,  by  reason  of  personal  injury, 
31. 

of  notice  of  demand  for  payment  of  rent,  defect  in  allegation  of,  47. 
Service  of  summons.     (See  also  Summons.) 

of  alias,  need  not  also  serve  original,  69. 

on  corporation,  association,  partnership,  express,  insurance,  or  tele- 
graph company,  71. 

substituted,  72. 

proof  thereof  requisite  to  jurisdiction,  72. 
Slander,  no  jurisdiction  in  action  to  recover  damages  for,  31. 
Squatter,  summary  removal  of,  question  of  title,  47,  89. 
Stallions,  lien  for  services  of,  46. 

Statute,  complaint  on,  for  refusing  to  pay  wages  of  judgment  debtor,  86. 
Statute  of  frauds,  contract  for  manufacture  of  goods,  41. 

as  to  sale  of  merchandise  in  bulk,  47. 
Stationary  for  courts,  how  provided  for,  16,  20. 


Index  145 

Stay  of  execution,  jurisdiction  to  grant  or  vacate,  31. 
Stenographers,  continuance  in  office  of  certain,  15. 
Stipulation,  when  court  has  power  to  relieve  party  from,  52. 
Stock-books,  penalty  for  refusal  to  exhibit,  44. 
Substituted  service  of  summons,  proof  to  acquire  jurisdiction,  32. 
Summary  proceedings,  amendment  of  petition  or  answer  in,  30,  96. 
costs  in,  68. 

on  discontinuance  of,  68,  96. 
to  direct  or  set   aside   a  verdict,  and  grant  or  deny   a  new  trial, 

30,  52. 
to  direct   or  set   aside  verdict,  or  vacate,  amend,   or  modify   final 

order  in,  31,  47,  52. 
jurisdiction  of,  30 

to  make  final  order  in,  31. 
may  be  raised  for  first  time  on  appeal,  47. 
petition  must  state  manner  of  service  of  notice  to  pay  rent,  47. 
squatter,  removal  of,  47,  56,  89. 

verification  of  petition  by  domestic  corporation,  47. 
Summons,  alias  summons  as  to  jurisdiction  same  as  original,  69,  71. 
amending  affidavit  of  service  of,  73. 
not  personally  served  in  attachment  action,  judgment  by  default, 

47. 
taken  out  by  attorney-general  or  corporation  counsel,  no  fees  are 

payable,  27. 
service  of,  on  corporation,  association,  partnership,  express,  insur- 
ance, or  telegraph  company,  71. 
costs  in  actions  by  city  of  New  York  to  recovery  of  penalties,  26. 
not  personally  served,  when  judgment  cannot  be  taken  by  default, 

76. 
indorsement  of,  in  action  to  recover  a  penalty,  71. 
original,  need  not  be  served  with  alias,  69,  71. 
substituted  service  of,  72. 

proof  to  acquire  jurisdiction,  32,  70. 
Supreme  Court,  cannot  set  aside  judgment  of  this  court,  but  may  set 
aside  transcript  docketed  and  supplementary  proceedings,  99,  102. 
rules,  under  section  20,  26,  64. 

action  to  recover  less  than  $500  and  costs  cannot  be  brought  in,  32. 
Supplementary  proceedings  on  judgment  recovered  in  this  court,  tran- 
script  docketed,    Supreme   Court    may    set   them    aside,   but   cannot 
vacate  the   judgment,   99,    102. 
Surety,  jurisdiction  in  action  upon  bond  of,  29. 

foreign  corporation,  upon  city  marshal's  bond,  37,  42,  111. 
upon  marshal's  bond,  what  necessary  to  obtain  judgment  against, 
110. 

10 


146  Index 

Surety  —  (Continued) : 

liability  for  wrongful  levy  of  marshal,  110. 

in  what  court  bond  of  marshal  may  be  prosecuted,  110. 
Sureties,  justification  of,  on  undertaking  for  adjournment  longer  than 

eight   days,  90. 
Surgeon,  liability  of,  in  treatment  of  patient,  40. 

Taxation  of  costs,  121. 

on  appeal  to  Appellate  Term,  cannot  be  for  failure  to  file  return, 
122. 
Tenement-house  repairs,  order  for,  not  a  lien,  44. 
Testimony.      (See  Evidence.) 
Time  of  motion  to  set  aside  judgment,  100. 

vacating  judgment  not  rendered  in,  100,  102. 

failure  to  issue  execution  in,  98,  102,  106,  108. 
Title,  question  of,  on  summary  removal  of  squatter,  47,  55,  89. 

to  real  property  when  it  is  not  in  question,  89. 

in  third  person  to  chattel,  95. 
Tort,  when  cause  of  action  for,  may  be  waived,  85. 
Transcript  of  amended  judgment  for  redocketing,  103. 

docketed  of  judgment  of  this  court,  may  be  set  aside  by  Supreme 
Court,   99,    102. 

of  judgment  not  to  be  issued  while  execution  in  hands  of  marshal, 
102. 
Transfer  of  action  to  another  district,  when  mandatory,  63. 

of,  to  proper  district,  how  made,  66,  67. 

of  action  to  another  district,  how   made,  66,  67. 

of  cases  to  reserved  calendar,  57. 

of  erroneous,  appeal  from  order,   119. 
Transfers,  recovery  of  statutory  penalty  for  refusal  of  railroad,  44. 
Trial,  conduct  of,  93. 

jury.      (See  Jury  Trial.) 

new.     (See  New  Trial.) 

setting  case  down  for,  upon  opening  default,  99. 

of  summary  proceedings  to  recover  possession  of  real  property,  30 

Undertaker  in  business,  articles  exempt  from  execution,  106. 
Undertaking  by  surety,  jurisdiction  in  action  upon,  29. 

on  adjournment  longer  than  eight  days,  justification  of  sureties,  90. 
Usury   is   a  personal   defense,   87. 

Value  of  chattels,  jurisdiction  in  replevin,  how  determined,  44. 
cost  price,  when  evidence  of,  45. 
evidence  of  lost  goods,  96. 


Index  147 

Variance,  immaterial,  in  pleading  to  be  disregarded,  quantum  meruit 

and  express  contract,  88. 
Verdict  may  be  directed,  or  set  aside  in  summary  proceedings,  30,  31. 
entering  judgment  on,  92. 

sufficiency  of,  rendered  for  plaintiff  but  not  for  a  specific  sum,  93. 
is  set  aside  as  against  the  weight  of  evidence,  costs  where,  53,  99, 

100. 
when  properly  set  aside,  though  no  evidence  by  defendant,  49. 
Voluntary  payment  of  a  fine  under  a  mistake  of  law  cannot  be  re- 
covered, 40,  43,  44. 
Veteran,  removal  of  attendant,  25. 

Wages,  amount  to  be  levied  must  be  stated  in,  105. 

and  employment  damages,  37. 

execution  against  wages  or  salary  of  a  judgment  debtor,  105. 

of  judgment  debtor,  action  for  refusing  to  pay  wages  to,  42,  46, 
55,  86,  105,  107. 

married  woman's  right  of  action  for,  38. 
Waiver   of   jurisdiction,   32. 

of  jury  trial,  92. 

service  by  respondent  of  amendments  to  case  on  appeal,  is  a,  of 
defects,  119. 
Warehouse-keeper's  lien,  45,  46. 
Warrant  of  attachment,  jurisdiction  to  issue,  31. 

what  must  contain,  75. 

must  be  signed  by  plaintiff's  attorney,  77. 

note  questioning  above,  77. 
Warranty,  breach  of,  in  the  sale  of  a  horse,  47. 
Wife.     (See  also  Married  Woman.) 

no  jurisdiction  in  action  to  recover  damages  for  loss  of  society  of, 
31. 

action  for  medical  services  against  husband  for,  37. 

when  liable  for  necessaries,  support  of,  38. 

when  earnings  belong  to,  38. 

evidence  as  to  election  to  labor  on  her  own  account,  39. 

presumption  as  to  earnings,  39. 
Witness,  counsel  and  judge  in  examination  of,  94. 

credibility  of  expert,  is  to  be  determined  by  jury,  94. 

no  charge  for  attendance  of,  without  affidavit  is  produced  stating 
number  of  days  of  actual  attendance,  122. 
Writ  of  prohibition,  when  will  not  lie,  64. 


[Whole  Number  of  Pages   153.] 


srHOOL  OF  LAW  LIBRARY 
^™°  '  "v  Of  CALIFORNIA 


^MMITCHO^ 


3s       * 

<tf133NVS  ^/MAINIHt^ 


1  ^r 


^OFCAIIFO^ 


^ahvmih^ 


<\WEtlNIVE 

iZP'- 


.vlOSANCElfjV 


s     «- 


"%3AINIH\W 


^OKALIFOfcfc 


^AMv»an-#      yOA 


^mmms-y 


>    = 


£ 


tym\mj& 


^hibrary 


.^HIBRARYQ^ 


%Ql\m*Y 


AMFUNIVEW/a 


%MI1V3-J0^  <Til30NVSO^ 


'Or 

o 

—n 

i 


^•lOSANCEl^. 
%fflAINn-3V^ 


^OFCAUFO* 


yOWM: 


^OfCAllFORfe 


S 


#w 


3  -s 


2 


<$HIBRARY^ 
^1  <r 


so       S 


^lOSANCElfj^ 


,^EIINIVER%. 


<ttro-$o"  ^     "^saaAmn  3V\v 


^ILIBRARY^ 


%ojnv3jo^ 


^0FCALIF(% 


^AHViHIIH^ 


.\\KUNIVEJK// 


^lOSANCElfj^ 


<-">-•  I 


I 


so 


.^0FCAIIF(% 


AOF 


4? 


^Aavaan^ 


?•  ^ 
*% 


r4- 

i 

-n 
O 


- n 

i 

| 

IV-SOl^ 


^lOS-AMCflfju 


avIOS-AMCEIG> 


^/•hhaimmv 


^tl!BRARYi>        ^UIBRARYtfr 


.5»HiMi\eto> 


%0JITY3JO^ 


%0JITY3J0^ 


^OFCALIFOl  v      ^OFCAllFO/i^ 


%1»S0# 


'tflWSOV^        "^U3AINrt-3\W 


m        feS 


^kmitchq5^    ^ojfnojo^ 


^ttHWSOV 


.\V\E-UNIVERS/a 


o 


^lOS-ANGflfju 

o 


"^/.HHAINfl-atW 


^UIBRARY-Qc         otfUBRARYtf/v 


^OFCALIFOfy* 


^OFCAllFOfy* 

fV©l  1V£>1 

UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


AA    000  837  815    0 


.  ^M'l)NIYtKi^r_ 


%0dllV3-J0^       ^OJIIVDJO^  <T?133KVS01^ 


? 

u_ 

"%3AINIHftv 


^E-UNIVERS 


<TJ130NV-SOV 


-s^UIBRAm 


%f0JITV3-J0 


^•OF-CALIFO^ 


^OF-CAllFCMjto 


5 


v0AHVH8ltt^ 


^amih^       ^jdnvsoi^     ^/whainihv^ 


^OFCAtlFOfc 


yo-kmw$ 


.5tffUNIVEF% 


^lOSANCFlFj^ 


'•ftHONYSO^        "^MAINM^ 


AWEUNIVERJ/a 


^lOS-ANGElflu 


<TJHDNVS0# 


"WflHAINIHViv 


5^ELIBRARY^. 


^OFCAllFOfy^ 


^•UBRARYQr 


y0AHVH8IB^ 


^OFCAUFOfy* 


5MFW(vn?y/ 


^HINIVERS! 


^oxmmi^ 


^tfUDNYW 


^•IIBRARY^         ^UIBRARYO/- 

P  i  - ., 


.5tfEM!VER% 


^UR-ANGfl&u 


<Til30NVS(n^        "fr/KHAINIHtW 


^UIBRAITY-fl 


^/OJITVDJO 


^OF-CALIFORto       ^OFCAIIFO/fo 


,\WUNIVEW/a 

I- 


<ril33NVS01^ 


^•lOSANGFt^ 


-< 


^OFCAIIFO^ 


